R EPU BLIC OF SO UT H AFKI CA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
REPORTABLE · Yff/NO
OF INTEREST TO THE JUDGES · ¥E:81NO
REVISED
COURT CASE NO. 264/2023
In the matter between:
LIMPOPO PROVINCIAL COUNCIL OF THE
SOUTH AFRICAN LEGAL PRACTICE COUNCIL APPLICANT
AN IO
ADV PIETER JOHANNES VAN EEDEN RESPONDENT
JUDGEMENT
2
Introduction
1. The Limpopo Provincial Council of the South African Legal Practice Council ("the
Applicant or LPC ") brought an urgent application on the 21 st February 2023 in terms
of Rule 6 (12) of the Uniform Rules of Court of South Africa, as amended on the 01
July 2019 (the rules).
2. In brief the Applicant requests the following orders against Advocate Pieter
Johannes Van Eeden ("the Respondent");
2.1. That the Respondent, be suspended in terms of Section 43 of the Legal
Practice Act 28 of 2014 ("the Act'') for a period of 18 (eighteen) months or
such period as the Honourable Court may deem to be Justified, from
Practicing as an Advocate of this Honourable Court;
2.2. That the Respondent shall immediately surrender and deliver to the Registrar
of this Honourable Court his certificate of enrolment as an advocate of this
Honourable Court;
2.3. That during the period of suspension the Respondent is prohibited from
handling or operating on his trust accounts and practice accounts;
2.4. That the Director of the Limpopo Provincial Office of the Legal Council,
Khomotso Matsaung, or any person nominated by her, be appointed as
curator bonis (curator) to administer and control the trust account of the
Respondent and immediately to take possession of the Respondent's
3
accounting records, files and documents and subject to the approval of the
board of control of the Legal Practitioners Fidelity Fund;
2.5 That the Respondent immediately deliver his accounting records, files and
documents containing particulars and information relating to any monies
received, held or paid by the Respondent to account of any person while
practicing as a trust advocate. The Respondent must also indicate the funds
which he invested in terms of Section 86 of the Legal Practice Act of 2014
and disclose the interest thereof; and
2.6 That the Respondent must be removed to any office that he might have
occupied as a curator of any estate in terms of section 54(1 )(a)(v) of the
Administration of Estate Act, No 66 of 1965, as a guardian of a minor in terms
of section 72(1) read with section 54(1 )(1 )(v) and section 85 of the same Act,
or as a trustee of any insolvent estate in tenns of section 59 of the Insolvency
Act, No 24 of 1936, as a liquidator of any company in tenns of section 379(2)
read with 379 of the Companies Act, No 61 of 1973, as a Trustee of any trust
in terms of section 20(1) of the Trust Property Control Act, No 57 of 1988, as
a Liquidator of any Close Corporation appointed in terms of section 7 4 of the
Close Corporation Act, No 69 of 1984; and as an Administrator appointed in
terms of section 7 4 of the Magistrates Court Act, No 32 of 1944.
4
3 The Respondent opposed the abovementioned application by serving and filling his
notice of intention to oppose dated the 23rd January 2023. The Respondent further
served and filled his answering affidavit dated 06 February 2023.
4 On the 21 st February 2023 the matter did not proceed but removed from an urgent roll
by agreement between the parties. Subsequent thereof the Applicant served and filled
the replying affidavit dated the 27th March 2023.
5 The matter was in a special roll on the 25th April 2025. Before the matter was heard the
Respondent raised point in limine and indicated that this application is flawed and ultra
vires because the LPC did not follow the correct procedure in their investigation. The
court dismissed the point in limine after the court found that the LPC followed the right
procedure in terms of the Act when investigating the matter. The matter was heard by
this Court, thereafter, the Judgment was reserved.
Background.
6 The background facts of this matter are common cause. On the 21 July 2022, the
complainant Mr Albert Le Roux in his capacity as a Trustee of Schoonlaagte Trust ("the
trust"), lodged a complaint to the Applicant against the Respondent. The complaint was
pursuant to the amount of R12 000 000.00 which the Respondent had received in his
FNB Trust Account on behalf of the trust but the Respondent misappropriated the said
amount. The Respondent was supposed to have paid the amount of R12 000 000.00
into the Trust's trust account after the Farm being sole asset of the Trust registered
under Title deed; 21567/1988 was sold for an amount of R12 000 000.00. The
5
Settlement Agreement of this sale was made an Order of Court as per the Court Order
of the above Honourable Court under Case Number 8067/2017. This was paid in two
instalments, on the 12 June 2022 an amount of RB 000 000.00 was paid and on 24
June 2022 the amount of R4 000 000.00 was also paid.
7 The Trustees of the Trust approached the Court with an urgent motion proceeding to
compel the Respondent to effect the said payment. On the 27th September 2022 the
urgent court ordered the Respondent to effect payment within 24 hours. The Trustees of
the Trust requested the Respondent that he should pay the abovementioned amount
into the Trust's trust account but the Respondent failed to do so despite the court order.
The said court order has stipulated the bank account in which the Respondent should
transfer the amount of R 12 000 000.00 due to the Trust, however the Respondent
indicated that he cannot transfer the said amount to the stipulated account because is a
personal account, not the Trust's trust account.
8 As the Respondent refused to pay the R12 000 000.00 to the Trust's account, the
trustees of the Trust through their Attorneys of Record issued a Warrant of Execution
and attached the R12 000 000.00 which was held in the Respondent's Trust Account
but the Respondent only managed to pay the monies to the Trust on the 28 March
2023, six (6) months after he was compelled by this Honourable Court to transfer the
said monies not later than 24 hours.
9 The second complaint was made by the Applicant who alleged that the Respondent
practiced without a 2022 Fidelity Fund Certificate but it was later withdrawn on the basis
that the Applicant was satisfied that the Respondent possessed a valid 2022 Fidelity
Fund Certificate.
G
Discussion
10 Section 43 of the Act provides that:
Despite the provisions of this Chapter, if upon considering a complaint. a disciplinary
body is satisfied that a legal practitioner has misappropriated trust monies or is guilty
of other serious misconduct, it must inform the Council thereof with the view to the
Council instituting urgent legal proceedings in the High Court to suspend the legal
practitioner from practice and to obtain alternative interim relief.
11 The said Section allows the LPC , as a statutory disciplinary body, to institute urgent
legal proceedings in the High Court to suspend a legal practitioner if it is satisfied that a
legal practitioner has misappropriated trust fund money or is guilty of serious
misconduct. This in itself presupposes the notion that the LPC should put sufficient
allegations before court to show that misappropriation has taken place.
12 The practical application of Section 43 of the Act has presented a challenge as courts
have adopted a dim view of such proceedings being launched on an urgent basis with
the investigation against the legal practitioner being incoming plate or it being launched
before disciplinary proceedings have been concluded and an appropriate sanction is
imposed and some courts have opted to discharge the rule nisi on that basis. Other
courts however, have made it clear that once legal practitioners pilfer trust fund money ,
they must be suspended from the Roll.
13 In Limpopo Provincial Council of the South African Legal Practice v Chueu
Incorporated Attorneys and others (6947/2021) [2021] ZALMPPHC 75 (25 October
7
2021 ). (8) the SCA faced the very same dilemma. In the Court a quo, the LPC brought
an application in terms of Section 43 to suspend the Respondents which were directors
of the first Respondent for a period of 18 months pending the disciplinary enquiry into
the alleged misconduct of the Respondents which relating to in the misappropriation of
funds received in trust from the Road Accident Fund and Trust deficit of R25 825
699.89. interim relief was granted in respect of the Second Respondent only and he
was suspended for period of 12 months pending the finalization of the investigation in
lieu of the disciplinary hearing and the application for the suspension of the remainder of
the Respondent's (directors of the First Respondent) was dismissed. Aggrieved by the
latter order, the applicant approached the supreme court with special leave to appeal
after it was refused by the court a quo that the third to ninth Respondents as directors of
the firm also be suspended as they cannot escape liability by pleading ignorance of
financial matters when faced with an allegation of misappropriation.
14 The determination of applications of this nature involve a three-stage enquiry as
confirmed recently in Hewetson v Law Society of the Free State (948/2018) [2020)
ZASCA 49; [2020) 3 All SA 15 (SCA); 2020 (5) SA.86 (SCA) (5 May 2020) as set out in
Malan and Another v Law Society, Northern Province (568/2007/ [2008) ZASCA 90;
2009 (1) SA 216 (SCA; [2009] 1 All SA 133 (SCA) (12 September 2008); First, the Court
Must decide whether the alleged offending conduct has been established on a
preponderance of probabilities, which is a factual inquiry. Second, it must consider
whether the person concerned "in the discretion of the Court" is not a fit and proper
person to continue to practice. This involves a weighing up of the conduct complained of
against the conduct expected of an attorney and, to this extent, is a value Judgment.
And third, the Court must inquire whether in all the circumstances the person in
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question is to be removed from the Roll of Attorneys or whether an order of suspension
from practice would suffice.
15 It came as no surprise that the SCA upheld the appeal and set aside the order of the
high court and ordered the suspension of the third to eight Respondents for a period of
six months pending the finalization of investigations into their conduct as directors of
First Respondent (the law firm) failing which, the suspension order will lapse. The Court
indicated that the order pertains to interim relief that was sought and emphasized that
only when final relief is sought, would the question if the legal practitioners are fit and
proper persons to continue practice and remain on the Roll of legal Practitioners.
16 Section 86(4) of the Act, A trust account practice may, on the instructions of any person,
open a separate trust savings account or other interest-bearing account for the purpose
of investing therein any money deposited in the trust account of the practice, on behalf
of such person over which the practice exercises.
17 The Applicant requested Trust Bank statements from the Respondent, the latter failed to
furnish them to the Applicant, as a result the Applicant had to obtain Trust bank
statements from First National Bank.
18 On the 16 July 2022, the Respondent unilaterally and without instructions of the
Trustees of the Trust invested R12 000 000.00 into his busines's First National Bank
Investment account not opened in terms of the Act. He made submissions in his
Answering Affidavit that it is in the best interest of the Trustees to invest the monies.
9
19 The Respondent did not account or pay the Trustees of the Trust regarding the R 12 000
000.00.
20 The Respondent transferred out of his personal investment account an amount of R4
634 302.00. On the 14 September 2022, the Respondent further transferred the amount
of R7 000 000.00 into another unknown FNB Account numbers not opened in terms of
Section 86(4) of the Act. The Respondent failed to satisfy the Court on his submissions
nor in his Answering Affidavit why these monies were transferred to unknown accounts.
21 On the 10 October 2022, the credit balance of the Respondent's FNB investment
Account was R435 765.95. On the 31 December 2022, the credit balance on the
Respondent's FNB investment account was reduced to R44 2489.06. The amount of R4
602 604.13 was credited from a Capitec Account in the name of PJ Van Eeden into the
Respondent's FNB investment account on the 27 February 2023 and the balance in the
Respondent's FNB investment account increased to R5 047 566.89.
22 The Respondent defied the Court Order of the 27 September 2022 after he was
Ordered by the Honourable Court to pay an amount of R12 000 000.00 into the Trust's
Bank Account. The said amount was only paid into the Trust's trust bank account
without interests after the Respondent's Trust Account had been attached in Execution.
23 The Applicant conducted investigations as the Respondent's Trust Bank statements as
well as Investment Account statements were obtained from First National Bank.
10
24 The Respondent transferred Client's monies from his Investment Account into unknown
Bank Accounts without instructions and these accounts are also unknown to the
Trustees. The investments that were made by the Respondent were not made in
accordance with Section 86( 4) of the Act.
25 There was misappropriation of funds by the Respondent.
Conclusion
26 In light of the abovementioned considerations, there is no alternative remedy available
to the Applicant, and in my view, has thus shown by virtue of being the regulatory body
of the Respondent that it has a clear right and there is a reasonable apprehension that
members of the public may suffer same fate.
27 The foundation of the legal profession is honesty and integrity. The conduct of the
Respondent falls short of this required standard and can only be described as
untrustworthy. In the Court's view and also on the balance of probabilities in this matter,
the misappropriation of trust money falls into the ambit of misconduct by a Legal
Practitioner. In the prevailing circumstances highlighted herein above, his suspension is
warranted as he cannot be considered as a fit and proper person to continue practicing
with such serious allegations of malfeasance.
28 The Applicant's Investigation Committee has already investigated the complaint,
obtained relevant bank statements and the Respondent's written response to the
allegations.
11
29 It is also important to point out that the Applicant is not required to convene a
disciplinary enquiry prior to taking steps for the suspension of the Respondent.
30 The Applicant submitted that the Respondent should pay costs on an attorney and client
scale. This court is of the view that the Applicant should be compensated for
successfully litigating against the Respondent. The Court takes note that party and party
scale is low when compared to attorney and client scale costs, therefore, party and
party scale costs may not cover all the expenses incurred as a result of this legal
proceeding. The issue of costs is the discretion of the Court, therefore, the court finds
that an order of attorney and client scale costs against the Respondent will be
reasonable to cover the Applicant's legal expenses.
Order
31 The Court makes the following order;
1. That the Respondent be immediately suspended for a period of 18 (eighteen)
months from Practicing as an Advocate of this Honourable Court.
2. The Respondent shall immediately surrender and deliver to the Registrar of this
Honourable Court his certificate of enrolment as an advocate of this Honourable
Court.
3. That in the event of the Respondent failing to comply with the terms of this order
detailed in the previous paragraph within 3 (three) days from the date of this
order, the sheriff of the district in which the certificates are, be authorized and
12
directed to take possession of the certificates and to hand them to the Registrar
of this Honourable Court.
4. That during the period of suspension, the Respondent is prohibited from handling
or operating on his trust accounts and practice accounts.
5. That the Director of the Limpopo Provincial Office of the Legal Council,
Khomotso Matsaung, or any person nominated by her, be appointed as
curator bonis (curator) to administer and control the trust account of the
Respondent, including account relating to insolvent and any deceased estate
and any estate under curatorship connected with the Respondent's practice
as a trust advocate and including also, the separate banking accounts
opened and kept by the Respondent at any bank in the Republic of South
Africa in terms of section 86(1) of Act No 28 of 2014, Legal Practice Act of
2014 and/or any separate savings or interest-bearing trust account as
contemplated by section 86(3) and 86(4) of Act No. 28 of 2014, in which
monies from such trust banking account have been invested by virtue of the
provisions of the said sub-sections or in which monies in any manner have
been deposited or credited {the said accounts being hereafter referred to as
the trust account), with the following power and duties:
5.1 Immediately to take possession of the Respondent's accounting records,
files and documents and subject to the approval of the board of control of
the Legal Practitioners Fidelity Fund {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
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to completion current transactions in which the respondent was acting at
the date of this order.
5.2 Subject to the approval and control of board of control of the Fund 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 have 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 of the Legal
Practice Act of 2014, to institute any 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 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 Respondent's accounting records the names of all
Persons on whose account Respondent appears to hold or to have
received trust monies (hereinafter referred to as trust creditors); to call
upon Respondent to furnish her, within 30 (thirty) days of the date of
service of this order or such further period as she 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
14
affidavits as she may require, to enable her, acting in consultation with,
and subject to the requirements of, the board of control of the Fund, 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;
5.5 To admit or reject, in whole or in part, subject to the board of control of the
Fund, the claims of any such trust creditor or creditors, without prejudice
to such trust creditor's right of access to the civil courts;
5.6 Having determined the amounts which she considers are lawfully due
to trust creditors, to pay such claims in full but subject always to the
approval of the board of control of the Fund;
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 utilize such surplus to settle or reduce (as the case may be), firstly,
any claim of the Fund in terms of section 88 of the Legal Practice Act of
2014 in respect of any interest herein referred to and, secondly, without
prejudice to the rights of the creditors of Respondent, the costs feed and
expenses referred to or such portion thereof as has not already been
separately paid by Respondent to Applicant ,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 board of control of the
15
Fund, to Respondent, if he is solvent, or if Respondent is insolvent, to the
trustee(s) of 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 to 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 . (we need to confirm
this paragraph)
5.9 Subject to the approval of the chairman of the board of control of the Fund
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 her in carrying out her duties as
curator; and
5.1 O To render from time to time, as curator, returns to the board of control of
The Fund show ing how the trust account(s) of Respondent has/have
been dealt with, until such time as the board notifies her that she may
regard her duties as curator as terminated.
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6. That Respondent immediately deliver his accounting records, files and
documents containing particulars and information relating to;
6.1 any monies received, held or paid by Respondent for or to account of any
person while practicing as a trust advocate;
6.2 any monies invested by the Respondent in terms of Section 86 of the
Legal Practice Act of 2014;
6.3any interest on monies so invested which was over or credited to
Respondent;
6.4any 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 administered by the Respondent as trustee or on
behalf of the trustee in terms of the Insolvency Act, No 24 of 1936 as
amended;
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;
17
6.7any company liquidated in terms of the Companies Act, No 61 of 1973 or
the Companies Act No 71 of 2008, administered by Respondent as or on
behalf of the liquidator;
6.8 any Close Corporation liquidated in terms of the Close Corporations Act,
69 of 1984, administered by Respondent as or on behalf of the liquidator;
and
6.9Respondent's practice as a trust account advocate of this Honourable
Court, to the curator appointed, 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 her nominee.
7. That should Respondent fail to comply with the provisions of the preceding
paragraph(s) 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 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. That the Curator shall be entitled to;
8.1 Hand over to the persons entitled hereto all such records, files and
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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 Requ ire from the persons referred to in paragraph 7.1 to provide any such
documentation or information which she may consider relevant in respect of
a claim or possible or anticipated claim, against her 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.
8.3 publish this order or an abridged version thereof in any newspaper he
considers appropriate; and
8.4 That Respondent be and is hereby removed from office as-
8.4.1 Executor of any estate of which 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(1 );
8.4.2 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;
8.4.3 Trustee of any insolvent estate in terms of section 59 of the
Insolvency Act, No 24 of 1936;
8.4.4 Liquidator of any company in terms of section 379(2) read with
19
379(e) of the Companies Act. No 61 of 1973;
8.4.5 Trustee of any trust in terms of section 20(1) of the Trust
Property Control Act, No 57 of 1988;
8.4.6 Liquidator of any Close Corporation appointed in terms of section
74 of the Close Corporation Act, No 69 of 1984; and
8.4. 7 Administrator appointed in terms of section 7 4 of the Magistrates
Court Act, No 32 of 1944.
9. That the Respondent is liable for and directed to pay to the Applicant;
9.1 in terms of section 87 of the Legal Practice Act of 2014, The reasonable costs
of the inspection of the accounting records of the Respondent;
9.2the reasonable fees of the Auditor engaged by Applicant;
9.3 the reasonable fees and expenses of the Curator, including travelling time;
9.4 the reasonable fees and expenses of any person(s) consulted and/or
engaged by the curator as aforesaid;
9.5 the expenses relating to the publication of this order or an abbreviated
version thereof; and the costs of this application on an attorney-and-client
scale.
10. That 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 him (Respondent) in respect of his former practice, and
20
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. That 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
authorized to issue a writ of execution on the strength of such certificate in order
to collect the curator's costs.
12. That the Respondent pay cost on attorney and client scale.
I agree
APPEARANCES
~
ACTING JUDGE OF THE HIGH COURT ,
POLOKWANE ; LIMPOPO DIVISION
MASHAMBAE
ACTING JUDGE OF THE HIGH COURT
LIMPOPO DIVISION; POLOKWANE
21
For the Applicant: Adv. Mokete Rakgogo
Instructing Attorney: A M Vilakazi Tau Inc Attorneys
Email: AmosV@vilakazitauattorneys.com / Mmamodike@vilakazitauattorneys.com /
info3@vilakazitauattorneys.com
For the Respondent: Adv. P J Van Eeden (in Person)
Email: Bastion.pj@gmail.com
Heard on: 25th April 2025
Judgement delivered on: 28th July 2025