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[2025] ZAFSHC 268
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The South African Legal Practice Council v MJ Koenane (4001/2024) [2025] ZAFSHC 268 (29 August 2025)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Not
Reportable
Case
no: 4001/2024
In
the matter between:
THE
SOUTH AFRICAN LEGAL
PRACTICE
COUNCIL
APPLICANT
And
MASILO
JOHN KOENANE
DEFENDANT
[ID
No: 6[…]]
Neutral
citation:
The South African Legal Practice
Council v MJ Koenane
(4001/2024)
[2025] ZAFSHC 268
(29 August
2025)
Coram:
Van Zyl J
et
Mpama AJ
Heard
:
20 February 2025
Delivered
:
29 August 2025
Summary
:
Application to have respondent attorney be struck from the roll of
legal practitioners; alternatively, be suspended from the roll.
Not
fit and proper person to practice as an attorney. Respondent struck
from the roll of legal practitioners.
ORDER
1
The respondent, Mr John Masilo Koenane (‘the respondent’),
is struck from the roll of
legal practitioners of the High Court of
South Africa.
2
The respondent shall immediately surrender and deliver to the
Registrar of this court his certificate
of enrolment as a legal
practitioner of the Court.
3
In the event of the respondent failing to comply with the previous
paragraph of this Order, the
sheriff be and is authorized and
directed to take possession of the certificate and hand it to the
Registrar of this Court.
4
The respondent is prohibited from handling and operating on his
accounts as detailed in para 5 below.
5
Mrs Margarette Kwakye, being the Director of the Provincial Legal
Council of the Applicant; alternatively,
the Acting Director and/or
Nominee of the Provincial Legal Council of the applicant be and is
appointed as the
Curator Bonis
to administer and control the
trust accounts of the respondent and any account relating to
insolvent and deceased estates and any
deceased estate and any estate
under Curatorship connected with the respondent’s practice as
attorney and including, also,
the separate banking accounts opened
and kept by the respondent at a bank in the Republic of South Africa
in terms of s 86(1) of
the LPA and/or any separate savings or
interest-bearing accounts as contemplated by s 86(3) and/or s 86(4)
of the LPA, in which
monies from such trust banking accounts have
been invested by virtue of the provisions of the said sub-sections or
in which monies
in any manner have been deposited or credited (the
said accounts being hereafter referred to as ‘
the trust
account
’) with the following powers and duties:
(a)
Immediately to take possession of the respondent’s accounting
records, records, files and documents
in relation to his practice as
a legal practitioner and to sign all forms and generally to operate
upon the trust account(s), but
only to such extent and for such
purpose as may be necessary to bring to completion current
transactions in which the respondent
was acting at the date of this
Order;
(b)
Where monies have been paid incorrectly and unlawfully from the
undermentioned trust accounts, to recover
and receive and, if
necessary in the interest of persons having lawful claims upon the
trust account(s) and/or against the respondent
in respect of monies
held, received and/or invested by the respondent in terms of s 86(1)
and/or s 86(3) and/or s 86(4) of the
LPA (hereinafter referred to as
‘
trust monies
’), to take any legal proceedings
which may be necessary for the recovery of money which may be due to
such persons in respect
of incomplete transactions, if any, in which
the respondent was and may still have been concerned and to receive
such monies and
to pay the same to the credit of the trust
account(s);
(c) To
ascertain from the respondent’s accounting records the names of
all persons on whose account the
respondent appears to hold or to
have received trust monies (hereinafter referred to as ‘
trust
creditors
’) and to call upon the respondent to furnish him,
within 30 (thirty) days after date of service of this Order or such
further
period as he may agree to in writing with the names and
addresses of and the amounts due to all trust creditors.
(d) To
call upon such trust creditors to furnish such proof, information
and/or affidavits as he/she may require
to enable him to determine
whether any such trust creditor has a claim in respect of monies in
the trust account(s) of the respondent
and, if so, the amount of such
claim;
(e)
Except where a trust deficit is determined, to admit or reject, in
whole or in part subject to the approval
of the LPFF Board, the
claims of any such trust creditor, without prejudice to such trust
creditor’s right of access to the
civil courts;
(f)
Having determined the amounts which he/she considers are lawfully due
to trust creditors, to pay such
claims in full, but subject to the
approval of the LPFF Board;
(g) In
the event of there being any surplus in the trust account(s) of the
respondent after payment of the admitted
claims of all trust
creditors in full to utilize such surplus to settle or reduce (as the
case may be), firstly, any interest due
to the Legal Practitioners’
Fidelity Fund in terms of s 86(5) of the LPA, secondly, any
curatorship fees and disbursements
and costs and expenses payable by
the respondent in terms of this Order and thirdly to pay such balance
to the respondent, or duly
authorized representative/trustee/executor
subject to the terms contained in this Order;
(h) In
the event of there being a trust deficit in the trust banking
account(s) of the respondent, in accordance
with the available
documentation and information, to pay the available balance in the
trust banking account(s) of the respondent
to the LPFF;
(i)
To appoint nominees or representatives and/or consult with and/or
engage the services of attorneys,
counsel, accountants and/or any
other persons, where considered necessary, to assist him/her in
carrying out his/her duties as
Curator; and
(j)
To render from time to time, as Curator, returns to the applicant
shown how the trust account(s) of
the respondent has/have been dealt
with.
6
That the respondent immediately delivers his/her said accounting
records, records, files and documents
containing particulars and
information relating to:
(a) Any
monies received, held or paid by the respondent for or on account of
any person while practising as an
attorney;
(b) Any
monies invested by the respondent in terms of s 86(3) and/or s 86(4)
of the LPA;
(c) Any
interest on monies so invested which was paid over or credited to the
respondent;
(d) Any
estate of a deceased person or an insolvent estate or an estate under
Curatorship administered by the
respondent, whether as executor or
trustee or Curator or on behalf of the executor, trustee or Curator;
(e) Any
insolvent estate administered by the respondent as trustee or on
behalf of the trustee in terms of the
Insolvency Act 24 of 1936;
(f)
Any trust administered by the respondent as trustee or on behalf of
the trustee in terms of the Trust
Property Control Act 57 of 1988;
(g) Any
company liquidated in terms of the
Companies Act 71 of 2008
,
administered by the respondent as or on behalf of the liquidator;
(h) Any
close corporation liquidated in terms of the
Close Corporations Act
69 of 1984
, administered by the respondent as or on behalf of the
liquidator; and
(i)
The respondent’s practice as an attorney of this court, to the
Curator appointed in terms of this
Order, provided that, as far as
such accounting records, records, files and documents are concerned,
the respondent shall be entitled
to have reasonable access to them
but always subject to the supervision of such Curator or his/her
nominee.
7
Should the respondent failed to comply with the provisions of the
preceding paragraph of this Order
the sheriff for the district in
which such accounting records, records, files and documents are, be
and is empowered and directed
to search for and to take possession
thereof wherever they may be and deliver them to such Curator.
8
That the respondent be and is hereby removed from office as –
(a)
Executor of any estate of which respondent has been appointed in
terms of
s 54(1)
(a)
(v) of the
Administration of Estates
Act 66 of 1965
or the estate of any other person referred to in
s
72(1)
thereof;
(b)
Curator or guardian of any minor or other person’s property in
terms of
s 72(1)
read with
s 54(1)
(a)
(v) and
s 85
of the
Administration of Estates Act 66 of 1965
;
(c)
Trustee of any insolvent estate in terms of s 59 of the Insolvency
Act 24 of 1936;
(d)
Liquidator of any company in terms of s 379(2) read with 379
(e)
of the Companies Act 71 of 2008;
(e)
Trustee of any trust in terms of s 20(1) of the Trust Property
Control Act 57 of 1988;
(f)
Liquidator of any close corporation appointed in terms of s 74 of the
Close Corporations Act 69 of 1984;
(g)
Administrator appointed in terms of s 74 of the Magistrates’
Court Act 32 of 1944.
9
That the Curator shall be entitled to:
(a)
Hand over to the persons entitled thereto all such records, files and
documents provided that a satisfactory
written undertaking has been
received from such persons to pay any amount, either determined on
taxation or by agreement, in respect
of fees and disbursements due to
the firm;
(b)
Require Claimants to provide any documentation or information which
the Curator may consider relevant in respect
of a claim or possible
or anticipated claim, against the Curator and/or respondent and/or
respondent’s clients and/or fund
in respect of money and/or
other property entrusted to the respondent provided that any person
entitled thereto shall be granted
reasonable access thereto and shall
be permitted to make copies thereof;
(c)
Publish this Order or an abridged version thereof in any newspaper
he/she considers appropriate;
(d)
Close the respondent’s practice insofar it relates to the
client files, records and trust accounts.
10
The respondent shall within 6 (six) months after having been
requested to do so by the Curator, or within such
longer period as
the Curator may agree to in writing, satisfy the Curator, by means of
the submission of taxed bills of costs or
otherwise, of the amount of
the fees and disbursements due to him/her (respondent) in respect of
his/her former practice and should
he/she fail to do so, he/she shall
not be entitled to recover fees and disbursements from the Curator
without prejudice, however
to such rights, if any, as he/she may have
against the trust creditor(s) concerned for payment of recovery
thereof.
11
A bill of costs is to be drawn on the High Court scale of attorney
and client costs taxed by the Registrar
of this Court (who is
authorized to do so)
mutatis mutandis
as if the Curator and
the responsible officials of the applicant in discharging their
duties as contemplated in this Order had
acted as attorneys, shall
constitute proof of the reasonable fees and disbursements (‘the
curatorship fees and disbursements’)
and that the Registrar be
authorized to issue a writ of execution for payment thereof by the
respondent.
12
The Curatorship will terminate when the Curator receives a final
written discharge from such duties from the
applicant consequent upon
the Curator filing with the applicant a final report and account
together with supporting vouchers, in
respect of the execution of the
Curator’s duties in terms of this Order.
13
In the event of the respondent failing to comply with any of the
provisions referred to in this Order, the
applicant shall be entitled
to apply through due and proper civil process commensurate with the
principles of the Constitution
of the Republic of South Africa, Act
106 of 1996, for the appropriate relief against the respondent
including but not limited to
an Order for the committal of the
respondent to prison for the respondent’s contempt of the
provisions of the abovementioned
paragraphs.
14
The respondent be and is hereby directed:
(a) To
pay, in terms of ss 87(2)/37(2)
(a)
of the LPA, the reasonable
costs of the inspection/investigation of the accounting records of
the respondent;
(b) To
pay the Curatorship fees and disbursements (obtained the appropriate
scale for attendances by the Curator
and to consider whether or not
to include the rate in the Court Order);
(c) To
pay the expenses relating to the publication of this Order or an
abbreviated version thereof; and
(d) To
pay the costs of this application on an attorney and client scale.
JUDGMENT
Van
Zyl J (Mpama AJ concurring)
[1]
The South African Legal Practice Council (‘the applicant’)
approached Court for an order that
Mr John Masilo Koenane (‘the
respondent’) be struck, alternatively, be suspended from the
roll of legal practitioners,
together with ancillary relief.
[2]
The respondent is a legal practitioner enrolled as a practising
attorney and practices under the name and
style Koenane Attorneys in
Bloemfontein.
Background
facts:
[3]
Mr Bonakele Pitso (‘Mr Pitso’), acting in his own
interest and on behalf of thirty-one individual
complainants
(collectively ‘the complainants’) lodged a complaint with
the applicant against the respondent.
[4]
The complainants were dismissed by the Kopanong Local Municipality
and their legal challenge to the fairness
of their dismissal had
progressed to the Labour Appeal Court. The complainants instructed
the respondent to act on their behalf
in the appeal, for purposes of
which they paid a deposit of R25 000.00 upfront to the
respondent upon his request. The respondent
failed to carry out his
mandate and he has not accounted for the funds that he received.
[5]
The respondent was twice requested by the applicant to reply to the
complaint, but these requests went unanswered.
The respondent
was thereafter called upon to appear before the applicant’s
Investigating Committee on 3 March 2023.
[6]
The respondent indeed appeared before the Investigating Committee,
during which appearance he,
inter alia
, undertook to draw up a
statement of account and look for notes regarding the relevant appeal
in his office ‘dummy file’.
He was to again appear before
the Investigating Committee on 6 March 2023 and undertook to then
furnish the said Committee with
the aforesaid documents.
[7]
The Investigating Committee convened on 6 March 2023, but the
respondent failed to appear and failed to provide
the documents that
he had promised to submit. The Investigating Committee
determined that there was
prima facie
evidence of misconduct
on the part of the respondent and recommended that the complaint be
referred to the applicant’s Disciplinary
Committee for
adjudication in terms of s 37(3)
(a)
of the Legal Practice Act,
28 of 2014 (‘the Act’).
[8]
The disciplinary proceedings were held on 13 December 2023. The
respondent did not attend the hearing
and the hearing continued in
his absence in accordance with Rule 41.1 of the South African Legal
Practice Council Rules (‘the
Rules’). The
respondent was found guilty on the following charges levelled against
him:
(a)
Charge 1, a breach of Provision 16.1 of the Code of Conduct for All
Legal Practitioners Candidate Legal Practitioners
and Juristic
Entities (‘the Code of Conduct’), for failing to reply to
communications from the applicant which required
an answer within a
reasonable time and/or a good cause for a refusal to answer.
(b)
Charge 3, as alternative to charge 2, a breach of provision 3.4 of
the Code of Conduct, for failing to honour
the undertaking the
respondent made before the Investigating Committee on 3 March 2022 to
furnish the applicant with his written
response to the complaint as
well as a copy of his office file on or before 6 March 2022.
(c)
Charge 4, a breach of Rule 54.11 of the Rules in that trust money was
deposited into the respondent’s
business banking account, which
was paid to the respondent between 28 March 2020 and 3 April 2020 in
several increments of R500.00
to R2 000.00.
(d)
Charge 5, a breach of Rule 54.14.7.2 of the Rules, for failing to
deposit the money which the respondent received
from the complainants
between 28 March 2020 and 3 April 2020 into his trust banking account
on the date of receipt of such monies
and/or the first following
banking day.
(e)
Charge 6, a breach of Rule 54.12 of the Rules, for failing to account
to the complainants within a reasonable
time after the performance or
earlier termination of any mandate, in writing, specifying all
amounts received, all disbursements
and other payments made, all fees
charged and raised against the respondents, as well as the amount
owing to or by the respondent.
[9]
In view of the aforesaid findings, the Disciplinary Committee
recommended that the respondent be struck from
the roll of legal
practitioners and on 9 March 2024 it was resolved that such an
application be brought to Court.
Applicable
general principles:
[10]
The general approach to be followed in an application such as the
present, are set out as follows in
South African Legal Practice
Council v Melato
[2021] ZAFSHC 305:
‘
[10]
When the court considers an application of this kind, it follows a
three-stage inquiry: see,
inter
alia
,
Jasat
v Natal Law Society
2000
(3) SA 44
(SCA);
Malan
& Another v Law Society of the Northern Provinces
[2008]
ZASCA 90
;
2009
(1) SA 216
(SCA).
[11] Firstly,
the court has to decide whether the alleged offending conduct has
been established on a preponderance
of probabilities. It is a factual
enquiry.
[12] Secondly,
the enquiry is whether the person concerned is, in the discretion of
the court, not a fit and proper
person to continue to practice or
should be suspended from practice. This requires the court to
exercise a discretion that involves
a weighing up of the conduct
complained of against the conduct expected of a legal practitioner,
and in this regard it is partly
value judgment and partly objective
fact.
[13] Thirdly,
the court enquires whether in all the circumstances of the matter the
person in question ought to
be removed from the roll of practitioners
or whether an order of suspension from practice for a specified
period might suffice.
Again, this involves the exercise of a
discretion as to whether the ultimate penalty is warranted in the
circumstances.
[14] . .
.
[15] Each
case depends on its own circumstances. The entire inquiry is of a
disciplinary nature, and how the court
conducts the inquiry depends
on the circumstances of the case. (See
Solomon
v Law Society of the Cape of Good Hope
,
1934
A.D. 401
at
412.)’
[11]
The principles to be applied in an application against a legal
practitioner to have his name struck from the roll of
legal
practitioners, are stated in
Hepple v Law Society of the Northern
Provinces
[2014] 3 All SA 408
(SCA) to be the following:
‘
[9]
In considering whether a case has been made out against an attorney
sought to be struck from the roll
it is necessary to bear in mind
that the evidence presented by the law society is not to be treated
as though one was dealing with
“a criminal case” or “an
ordinary civil case”. The proceedings in applications to strike
the name of attorneys
from the roll are not ordinary civil
proceedings. They are proceedings of a disciplinary nature and
are
sui generis
.
It follows, therefore, that where allegations and evidence are
presented against an attorney they cannot be met with mere denials
by
the attorney concerned. If allegations are made by the law society
and underlying documents are provided which form the basis
of the
allegations, they cannot simply be brushed aside; the attorneys are
expected to respond meaningfully to them and to furnish
a proper
explanation of the financial discrepancies as their failure to do so
may count against them.’
The
applicant`s version:
The
complaint:
[12]
In terms of the complaint, the complainants mandated the respondent
on 9 February 2020 to represent them in the aforementioned
appeal
matter. For purposes of this, the respondent required an upfront
payment of R25 000.00 to be paid into a bank account
number
ending with the numbers 7193. Photographs of the bank deposit
slips attached to the complaint form are proof of some
of the
payments made.
[13]
In terms of the complaint the respondent failed to carry out his
mandate and when the complainants followed up regarding
the status of
the matter, the respondent undertook that he would contact them, but
never did.
[14]
To date the respondent has failed to account to the complainants in
respect of the aforesaid mandate.
The
respondent’s failure to respond to the applicant regarding the
complaint:
[15]
In a letter dated 17 March 2022, which the applicant sent to the
respondent on 22 March 2022, the respondent was requested
to reply to
the complaint on or before 19 April 2022. It was sent by e-mail
to
koenaneattorneys@gmail.com
,
which
is the e-mail address that the respondent had provided to the
applicant. The request went unanswered.
[16]
On 18 August 2022 the applicant sent a follow up letter to the
respondent, dated 17 August 2022, in which the respondent
was
forewarned that a failure to timeously respond to communications from
the applicant in itself constituted a breach of the Code
of Conduct.
The letter was e-mailed to the aforesaid e-mail address. The
respondent again failed to respond to the e-mail.
The
respondent’s appearance before the Investigating Committee:
[17]
Consequent to the respondent’s failure to respond to the
complaint, he was called upon to appear before the Investigating
Committee on 3 March 2023. This was done by means of a notice
which was also e-mailed
to
koenaneattorneys@gmail.com
.
[18]
The respondent attended the investigation, during which the
Investigating Committee questioned the respondent about both
his
failure to respond to the applicant’s request for a reply to
the complaint and the merits of the allegations in the complaint.
[19]
With regard to the respondent’s failure to respond to the
applicant, the respondent informed the Investigating
Committee that
although he does not deny that the letters of 17 March 2022 and 17
August 2022 were indeed sent to him, he was unaware
of them.
[20]
In the report of the Investigating Committee, dated 7 March 2023,
attached to the founding affidavit as annexure ‘FA5’,
it
was stated that the payments which the complainants made into an
account of Koenane Attorneys, FNB account, was an account ending
with
the numbers 7193. The records of the applicant reflect that the
trust account of Koenane Attorneys is also a FNB account,
but ends
with the numbers 8985.
[21]
According to the said report of the Investigating Committee, the
respondent was given an opportunity to peruse the content
of the
complaint and he responded as follows:
’
10.1 He
submitted that funds were deposited to him by the complainants.
10.2 He gave a
background of the instruction received being a Labour Appeal matter.
10.3 He travelled
to Kopanong Municipality to consult with the complainants on a way
forward.
10.4 He submitted
further that more information was to have been handed over to him in
order to proceed with this instruction.
10.5 At first, he
submitted that the deposit requested from the complainants were
deposited into his trust account, he then
later transferred the funds
to his business account.
10.6 Upon questions
from the Committee Members, he then changed his submission and stated
that he requested the complainants
to deposit directly into his
business account instead, although no work had been done and neither
was any statement of account/invoice
provided drawn up. This
status
quo
remained until the date he appeared on 3 March
2023. He indicated that he will be able to draw up an account
and furnish
the Committee with it on the 6
th
of March 2023
at 14h00.
10.7 He furthermore
submitted that the funds were all used up at this stage.
10.8 He then
continued to indicate to the Committee that he had not opened a file
for this matter at all. He then, after
questioning, indicated
that he has a ‘dummy’ file in which he keeps all his
notes but he is not sure if the notes for
this matter is in there.
He will have to go and look and furnish the Committee on the 6
th
of March 2023 at 14h00 with the notes.
10.9 The Committee
then continued to question him on his accounting system to which he
responded by saying that he has no
electronic accounting system and
does everything manually. When questioned about his manual
system he could not explain to
the Committee his manual system for
allocation of funds to matters. In fact, he stated that since
COVID he elected to have
clients deposit funds directly into his
business account.
10.10 The
matter was then postponed to the 6
th
of March 2023 for the
practitioner to furnish the Committee with a statement of
account/invoice indicating the work done and his
file/notes.
The practitioner undertook to be present on the 6
th
of
March 2023 at 14h00 and bring with the documents as requested.
10.11 On 6
March 2023, the Committee waited for the practitioner to avail
himself until 16h00. He failed to appear
and honour his
undertaking.’
[22]
As previously mentioned, the Investigating Committee thereupon
referred the complaint for adjudication in terms of s
37(3) of the
Act.
The
disciplinary hearing:
[23]
According to the applicant the respondent was properly notified of
the disciplinary hearing to be held on 13 December
2023, but despite
such notification he failed to appear at the hearing and the hearing
continued in the respondent’s absence
in accordance with Rule
41.1 of the Rules.
[24]
During the disciplinary hearing the complainant was called to testify
in relation to the merits of the complaint. According
the applicant`s
founding affidavit, his evidence can be summarised as follows:
’
31.1
The complainants were dismissed by the Municipality and instructed
the respondent to assist them with the
appeal case;
31.2
The respondent required an upfront payment of R25 000.00 from
the complainants and nominated FNB
account number … 7197 into
which the payment had to be made;
31.3
Between them, the complainants collectively paid the required amount
of R25 000.00. The
photographs of the bank deposit slips
attached to the complaint form are proof of some of the payments;
31.4
After respondent was instructed and paid by the complainants, they
could not make contact with the
respondent;
31.5
The respondent never responded to their calls or made any endeavours
to schedule consultations with
them.’
[25]
Mr Hanware, the chairman of the Investigating Committee, was also
called to testify at the disciplinary hearing
in respect of the
proceedings before the Investigating Committee. He confirmed
the authenticity and the veracity of the report
of the Investigating
Committee, attached to the founding affidavit as annexure ‘FA6’.
[26]
The judgment delivered in the disciplinary hearing, dated 22 January
2024, is attached to the founding affidavit as annexure
‘FA8’.
[27]
I have already recorded the respective charges on which the
respondent was found guilty.
[28]
It was subsequently found during the disciplinary hearing that the
respondent is unfit to be a legal practitioner and
the Disciplinary
Committee recommended that the respondent be struck from the roll of
legal practitioners.
The
respondent’s version:
The
respondent’s failure to respond to the complaint:
[29]
Other than the explanation the respondent gave before the
Investigation Committee that he does not deny that the relevant
letters of 17 March 2022 and 17 August 2022 were indeed sent to him,
but that he was unaware of them, the respondent failed to
give any
other explanation for his failure in this regard in his answering
affidavit.
The
Investigation Committee:
[30]
I have already partly dealt with the respondent’s version of
the relevant events which he gave to the Investigating
Committee.
[31]
On his own version in his answering affidavit, the respondent stated
as follows at p.118, para 8.1:
‘
The respondent
appeared before the Investigating Committee and testified that he
requested the complainants to pay him an amount
of R25 000.
The amount was paid in instalments ranging
from R500 to R2 000 occasioned between the 30
th
of March 2020 and 4 April 2020
although for the record it should be clear that the contested amount
is R13 000.00.’ (Own emphasis)
[32]
By necessary implication, the respondent’s statement amounts to
an admission that he received the full R25 000.00.
Had he
intended to convey that he only received R13 000.00, one would
have expected him to have said such before the Investigating
Committee. The Investigating Committee was constrained, due to
the absence of all the deposit slips, to accept that R13 000.00
was paid over to the respondent. The respondent is now latching
on to the Investigating Committee’s finding in this
regard.
For purposes of this application we will therefore accept that the
respondent received R13 000.00 as deposit
from the
complainants.
Further
version of the respondent in his answering affidavit in respect of
money received:
[33]
In addition to his confession before the Investigating Committee, the
respondent admitted under oath in his answering
affidavit that he
instructed the complainants to pay the money into his [business] bank
account. In this regard he stated
as follows at para 5.2 of his
answering affidavit:
‘
I would like to
assert that I told the complainant[s] that they should deposit the
money into
my bank account
as they simply had to cover the disbursements as from the onset I had
to spend money to drive from Bloemfontein and where they
were, which
is Trompsburg. I will also deal with factual inaccuracies
pertaining to the amount. Secondly, I had to
advise the clients
and take a mandate in a meeting that resembled town meeting from
10h00 to 16h00. Thirdly, I had to drive
twice to Johannesburg
Labour Court to get documents pertaining to the said matter and spent
time to get relevant documents in our
High Court, especially the
Settlement document that I was told I had to upturn. All these
stem from the fact that the clients
had given me nothing more than
bare documents that I have included as referring documents. . .
. ‘(Own emphasis.)
[34]
According to the respondent the money which he received from the
complainants, was not trust money, but money for purposes
of paying
for disbursements. In this regard, the respondent sets out in his
answering affidavit that he had to travel from Bloemfontein
to
Kopanong Municipality from 10h00 to 16h00 and that the costs in
relation thereto were R1 140.40 when calculated at the
AA rate
per kilometre which was applicable in 2020. The respondent then
further states that he also had to make two trips to the
Labour Court
in in Gauteng in order to get copies of the Labour Court judgment and
other documents in the case file. The first
trip he made ‘around’
14 February 2020, the calculated costs of which were R4 419.07.
He further states
that he had to make the same trip again, which was
‘around’ 27 February 2020, the costs of which was
R4 309.20.
The respondent furthermore indicated that his fees
for accepting the mandate and for the initial consultation with the
person who
was sent to arrange the meeting, as well as the
consultation with the complainants, amounted to R10 496.00.
The respondent
then concluded as follows at paras 23 and 24 of his
answering affidavit:
’
23.
When the totals due to the Practitioner are calculated they amount to
R20 354.75 compared to the amount
of R13 000.00, as per the
receipts attached to the papers of the applicant, that was paid after
respondent had undertaken
the abovementioned work and trips.
24. The
respondent submits further that the difference between the two
amounts would reflect that the complainant[s]
actually owe an amount
of R7 354.75 to the Practitioner.’
[35]
There is no record of when the mentioned consultations took place,
with whom, or what they entailed. The word ‘around’
evinces that no clear account as to when these alleged trips took
place, is available. No contemporary supporting documents
such
as petrol slips, toll gate payments were presented either. The
respondent stated at paragraph 20 of his answering affidavit
that the
consultation in Trompsburg took place from 10h00 to 16h00 with a
group of the complainants. However, in the letter
addressed by
the respondent to the Disciplinary Chairperson, dated 5 May 2024, the
respondent stated that the meeting was held
from 09h00 to 15h00.
[36]
In the very same letter of 5 May 2024, the respondent stated as
follows:
‘
I then sent a
person to Johannesburg to go and fetch the necessary documents
pertaining to this case. At that time I had not
yet been paid
by the client[s], although I will verify the date on which I sent a
person to Johannesburg Labour Court.’
[37]
In the last-mentioned explanation no mention is made of two trips and
it is also not stated that the respondent personally
undertook the
trip to Johannesburg. The name of the person who was allegedly
sent to Johannesburg, is also not mentioned,
nor the date of the said
trip.
[38]
As previously indicated, it was stated at paragraphs 10.5 and 10.6 of
the report of the Investigating Committee, that
the deposit requested
from the complainants were deposited into the respondent’s
trust account, whereafter he later transferred
the funds to his
business account. The respondent however changed his version
and stated that he requested the complainants
to deposit the money
directly into his business account, although no work had been done.
Contrary to the aforesaid, the following
was stated by the respondent
in his aforesaid letter addressed to the disciplinary chairperson,
dated 5 May 2024:
‘
At the time that
the client[s] paid, I had already done the work outlined above.
I therefore gave him/them my business account
for my payment as I
feel that I was entitled to that money, and that money was not meant
for Trust account’.
[39]
It was common cause during the meeting of the Investigating Committee
that the respondent had failed to draw up a statement
of account and
to provide same to the complainants. He further indicated that
he had not opened a file for the matter at
all. After
questioning he indicated that he has a ‘dummy’ file in
which he keeps all his notes but he is not
sure if the notes for this
matter is in there. He undertook to furnish the committee with
an account and with the dummy file
during a meeting to be held on 6
March 2023. The respondent failed to appear before the
investigating committee on 6 March
2023 and consequently failed to
provide them with the documents which he undertook to do.
[40]
The respondent has to date failed to provide a proper statement of
account for work that had been done. He has also failed
to provide
any consultation notes and, subject to what follows
infra,
also
failed to provide any documents, properly dealt with by the
respondent, which had specifically been retrieved from the file
at
the Labour Court. The respondent has also clearly deposited money,
which was supposed to have been deposited into his trust
account on
the day of receipt thereof or the first banking day thereafter, into
his business account.
The
respondent’s failure to carry out his mandate:
[41]
According to the respondent, during his second trip to the Labour
Court, he was given a file which he described as a
‘mixed up’
file. The respondent stated the following in paras 13 and 14 of
his answering affidavit:
’
13.
That file reflected the correct case number but wrong citation of
parties, and that only the latter part of
the document had the
correct case number with the correct citation of the parties.
That particular part of the papers had
an order which indicated that
the order made on the 29
th
July 2014 is rescinded. Secondly, what was also attached to
that court order was a letter from the office of the Labour Court
to
the Registrar indicating that the matter had been handed to Justice
Nkutha-Nkontwana for her perusal and direction. It
was clear
that there was a mix up regarding the matter of Kopanong Local
Municipality employees and the matter of The Director-General:
Labour v Compound Securities.
14.
This is what made me refer to this file when I spoke to the applicant
party during the investigation to refer
to it as a ‘dummy’
file. This file never had completed documents and it had forced
me all stages to forage for
information. The same was the case
with the founding referral documents which consisted only of one
paged documents.’
[42]
The respondent is also hiding behind the COVID epidemic as an excuse
to not have fulfilled his mandate and to not have
given feedback to
the complainants. He states that he and his family contracted
COVID around October 2020 and he was hospitalized
from 7 October 2020
to 11 October 2020. It took him about nine months to
recuperate.
[43]
One has to keep in mind that the mandate which the complainants gave
to the applicant was about seven months before he
contracted COVID.
[44]
The annexures attached to the answering affidavit as annexure ‘OO’
and the medical annexures attached to
the answering affidavit as
“MKK1”, both fall to be criticized, like the applicant
duly did at paragraph 30 of its replying
affidavit:
’
30.
The respondent has, without discernible method, attached a vast
collection of documents to his affidavit in
respect of which he has
failed to make any clear or specific reference, nor does he explain
their purpose or relevance to the issues
at hand. This is not
merely irregular, it is impermissible. It runs afoul of the
well-established principle that a
court and deponents cannot be
expected to trawl through annexures in search of their significance
or relevance. The consequence
is that the respondent cannot
rely on such documents.’
[45]
The following extracts from the replying affidavit are also highly
relevant regarding the respondent’s failure
to have fulfilled
his mandate:
’
35.
The respondent’s explanation is a fragmented series of events –
ill defined visits to the Labour
Court and vague references –
only to stop abruptly short of explaining this essential point:
what, if anything, was
done thereafter in discharge of his mandate?
This abrupt ending, coupled with the absence of any explanation for
what was
done in the aftermath of these issues, leaves the
respondent’s entire account fatally incomplete.
36.
There is further, no indication that the respondent kept the
complainants informed of any developments –
most notably, any
obstacles that might have affected the progress of their case.
The respondent’s explanation galvanizes
the notion that the
complainants were left completely in the dark as to the status of
their matter.
37.
While the lockdown and related restrictions imposed between March
2020 and April 2022 undoubtedly disrupted
many aspects of life and
work, this cannot serve as a blanket excuse for inaction.
38.
There is no account of what, if anything, was done between the
respondent’s visit to the Labour Court
on 27 February 2020 and
the imposition of the level 5 lockdown on 26 March 2020.’
Alleged
procedural unfairness:
Absence
at the disciplinary hearing:
[46]
According to the respondent, it constituted procedural unfairness
when the Disciplinary Committee decided to continue
with the
disciplinary hearing in his absence. In this regard he stated as
follows at para 29 of answering affidavit:
’
29.
The Disciplinary Committee upon realising that the Respondent is not
before them, given the gravity and the
magnitude of the charges, and
in line with the principle of
audi alteram
partem
should have either postponed the
hearing, and subpoenaed the respondent or personally served the
respondent a subpoena for his
attendance.
30.
This is considering the fact that one of the charges dealt with
misappropriation of trust funds monies
which is an offence
which could lead to his possible removal from the roll of practicing
attorneys.’
[47]
When the totality of the papers are considered, it is evident that
the respondent’s version regarding his absence
at the
disciplinary hearing is contradictory.
[48]
At para 28 of the answering affidavit the respondent states that the
office of the applicant called him a day before
the hearing to
ascertain whether he would be appearing. He indicated that he
was not aware that the matter was sitting on
the 13
th
of
December 2023 and that he was on his way to be with his family that
had travelled to Johannesburg. This call, according
to the
respondent`s memory, was made between 13h00 and 15h00, and by a
certain Makhotso. According to the respondent, he specifically
indicated that he was leaving for Johannesburg and that he would not
be able to attend the disciplinary hearing. Ms Makhotso,
according to the respondent, said that she would relay the message to
the relevant person. The respondent left the matter
at that and
joined his family in Johannesburg.
[49]
In the letter previously referred to which the respondent addressed
to the Disciplinary Chairperson, dated 5 May 2024,
contrary to the
last-mentioned version, the respondent stated as follows:
‘
I received a call
from one of the staff members of the council between 12 and 13
December 2023 saying that I must attend a scheduled
disciplinary
hearing the following day. If my memory serves me well it was
between 11h00 and 13h00.
I indicated that there
was no way in which I could attend that hearing and requested that it
should be rescheduled as I had already
closed the office for the year
and I was already going on vacation. My family had already left
town.’
[50]
However, in the replying affidavit the applicant fully dealt with the
notice of the disciplinary hearing which was given
to the
respondent. I deem it necessary to quote from the replying
affidavit:
’
48.
The notice of the disciplinary hearing was sent to the respondent on
22 November 2023 by the Senior Administrator
– Regulatory of
the Legal Practice Council, Ms Makgotso Menyatso (‘Ms
Menyatso’). The notice, together
with the attached
complaint, was e-mailed to ‘koenaneattorneys@gmail.com’,
an e-mail address the respondent himself
provided to the LPC. A
copy of the covering e-mail and attached complaint is annexed marked
“REP1”.
49. Ms
Menyatso subsequently made efforts to contact the respondent by phone
to confirm that he had received the
notice. However, her call
went straight to voicemail. On the same day, she sent a follow-up
e-mail to the respondent, seeking
confirmation of receipt of the
notice. Annexure “REP2” is a copy of this e-mail.
50. On
29 November 2023 Ms Menyatso sent the respondent a comprehensive
bundle of documents intended for use at
the hearing. This
communication was similarly effected by e-mail. Annexure “REP3”
is a copy of the covering
e-mail. Furthermore, this e-mail
contained an additional notice, dealing with the constitution of the
disciplinary committee
and identifying the prosecutor. A copy
of this notice is annexed as “REP4”. …
51. On
1 December 2023 Ms Menyatso made another attempt to contact the
respondent, this time dialing both his
cell phone number and the
office number he had provided to the LPC. Once again, her
efforts were unsuccessful. She
then sent a further e-mail,
asking the respondent to confirm receipt of the notice and requesting
confirmation of his intention
to attend the hearing. Annexure
“REP6” is a copy of this e-mail.
52. In
a letter addressed to Ms Menyatso dated 12 December 2023, but which
only came to her attention the next
morning, the respondent
acknowledged that he received the e-mail [notifying him of the
hearing] but that he is unable to do so
in the final working week of
December due to a professional commitment – specifically, an
arbitration and a trial outside
town. Annexure “REP7”
is a copy of this e-mail. I point out
en passant
that
this explanation is contradictory to the one advanced by the
respondent in opposing this application.
53. On
the morning of the hearing, 13 December 2023, Ms Menyatso succeeded
in reaching the respondent on his cell
phone. On this occasion,
the respondent answered and stated that he was not aware of the
hearing, that he was out of town
and he would be unable to attend the
hearing.
54. Ms
Menyatso advised the respondent that, should he wish to request a
postponement, he could do so either in
person or through his
appointed legal representative, but the respondent did neither.
Ms Menyatso’s confirmatory affidavit
is annexed marked “REP8”.
55. In
light of the aforesaid the respondent’s contention that he was
not properly notified of the hearing
is patently unfounded. ….
56. On
a balanced conspectus of the facts, the respondent willingly failed
to appear at the disciplinary hearing.’
[51]
The relevant part of the aforesaid ‘REP7’ reads as
follows:
‘
Kindly note that I
have received your e-mail this past Friday.
I would like to attend to
the above hearing as soon as possible. However, there is no way
in which I can attend to this especially
the last working week of
December.
I am supposed to attend
an arbitration at G4S involving Ms Natasha Jansen in the Thabo Bester
matter. There is no way in which
this matter can be postponed
as it was postponed before. Besides, I will attend to one other
trial outside town.
Kindly reschedule this.
I can send you suitable dates.’
[52]
In the circumstances I am convinced that the respondent received due
and proper notice of the disciplinary hearing
and he is clearly
untruthful in his different versions which he attempted to present.
The Disciplinary Committee was therefore
within its rights to have
continued with the hearing in the absence of the respondent.
The
respondent’s proposed appeal:
[53]
The respondent’s second complaint in respect of alleged unfair
procedure, is that the applicant failed to furnish
him with the
records of the disciplinary hearing, in particular, the disciplinary
hearing chairperson’s report. The
respondent asserts that
this deprived him of pursuing an appeal against the hearing’s
outcome.
[54]
However, it is evident from the replying affidavit that on 30 January
2024 Ms Menyatso e-mailed the respondent a letter,
attached to which
was a copy of the judgment of the disciplinary hearing. The
e-mail is attached to the replying affidavit
as annexure “REP9”
and the accompanying letter is marked “REP10”.
[55]
The aforesaid letter of 30 January 2024, stated as follows:
‘
Kindly note that
the Disciplinary Committee made a finding that you are guilty of
misconduct.
Attached hereto is the
report judgment as well as the sanction imposed against you.
You are furthermore
advised of your right to appeal the outcome of the disciplinary
committee to the Appeals Tribunal within 30
days in terms of Rule
44.1 read with
Rule 44.3.1
of the
Legal Practice Act, 28 of 2014
, if
you are aggrieved by the outcome’.
[56]
The following averments in the answering affidavit in paragraph 42 of
the answering affidavit is consequently devoid
of all truth:
‘
. . . however,
since January 2024 until 19 July 2024 I am not furnished with the
report. The only time I am privy to the report,
and its
content, is on the 19
th
of July 2024 when I am served the application for my disbarment’.
[57]
The respondent only lodged an appeal on 7 May 2024. He was
thereupon advised that the appeal had lapsed.
[58]
It is consequently evident that the respondent is the one who failed
to take any timeous steps to impugn the outcome
of his disciplinary
hearing. It is not due to any conduct or failure on the part of
the applicant.
The
charges against the respondent:
[59]
In view of the totality of the evidence dealt with above, I am
satisfied on a preponderance of probabilities
that the offending
conduct in respect of each of the charges to which the applicant was
found guilty, has been established.
Fit
and proper person to practice as an attorney:
[60]
As previously cited from
South African Legal Practice Council v
Melato at
para 12, the enquiry is whether the person concerned
is, in the discretion of the court, not a fit and proper person to
continue
to practice or should be suspended from practice. This
requires a court to exercise a discretion that involves a weighing
up
of the conduct complained of against the conduct expected of a legal
practitioner and in this regard it is a partly value judgment
and
partly objective test.
[61]
In
South African Legal Practice Council v Nonxuba and Another
(16777/2023)
[2024] ZAWCHC 410
(4 December 2004) at para 60 the
court held that the success of our legal system depends upon the
public having full confidence
in the integrity of the members of the
legal profession.
[62]
In
Kekana v Society of Advocates of South Africa
[1998] ZASCA 54
;
1998 (4) SA
649
(SCA) at 655G to 656B the Supreme Court of Appeal,
inter alia,
held as follows:
‘
I
share the view expressed in
Olivier'
s
case
supra
at
500H
ad
fin
that,
as a matter of principle, an advocate who lies under oath in
defending himself in an application for the removal of
his name from
the roll, cannot complain if his perjury is held against him
when the question arises whether he is a fit and
proper person to
continue practising. I also support Heher J's observation in the
present case that
(t)
he
word of an advocate is his bond to his client, the court and justice
itself. In our system of practice the courts, both high
and low,
depend on the
ipse
dixit
of
counsel at every turn.'
This is why there is a
serious objection to allowing an advocate to continue practising once
he has revealed himself as a person
who is prepared to lie under
oath. . . .The preservation of a high standard of
professional ethics having thus been
left almost entirely in the
hands of individual practitioners, it stands to reason, firstly, that
absolute personal integrity and
scrupulous honesty are demanded of
each of them and, secondly, that a practitioner who lacks these
qualities cannot be expected
to play his part.
The applicant has been
exposed as precisely such a person in a particularly illuminating
way. He gave false information to a committee
of the professional
society to which he belonged. He committed perjury in his opposing
affidavit. And he repeatedly did so again
when he testified in
Court.’
[63]
In the matter of
Law Society, Transvaal v Matthews
1989 (4) SA
389
(T) at 395F to G, the court stated as follows:
‘
I refer next to
the duty of an attorney in general. The attorney is a person
from whom the highest standards are exacted by
the profession and
this Court. If an attorney wishes to digress from that standard
he may do so, but he must then first cast
aside his profession by
resigning and then pursue his chosen course. He cannot serve
two masters. …’
[64]
Considering how the respondent dealt with the applicable trust money
which the complainants paid to him upfront,
his behaviour can be
described to have been similar to that of the first respondent in
Law
society of the Free State v Le Roux and Others
(3093)
[2015]
ZAFSHC 233
(30 November 2015) (
Le Roux
) at para 80:
‘
[80]
The first respondent makes false statements without flinching and
takes no responsibility for his actions. This court
takes a dim
view of an officer of the court who has no qualms in being untruthful
to a court, for it demonstrates a lack of two
important qualities
that are the very essence of an attorney’s profession:
honesty
and integrity.
The
attorney’s profession is indeed
“
an
honourable profession, which demands complete honesty and integrity
from its members. In consequence, dishonesty is generally
regarded as
excluding the lesser stricture of suspension from practice, while the
same can usually not be said of contraventions
of a different
kind.”’
[65]
The conduct of the respondent fell short of the aforesaid two crucial
elements of being a fit and proper person to practice
as an attorney,
which are honesty and integrity.
[66]
In my view the respondent is not a fit and proper person to practice
as an attorney.
Sanction:
[67]
In deciding on an appropriate sanction, the court is called upon to
decide not what constitutes an appropriate punishment
for past
transgressions but rather what is required for the protection of the
public. See
Law Society of Good Hope v Peter
2009 (2) SA
18
(SCA) at para 18.
[68]
In
Hewetson v Law Society of the Free State
2020 (5) SA 86
(SCA) striking off was referred to as a default position in cases of
dishonesty. In such cases, exceptional circumstances
would have
to be shown by the errant attorney to justify a suspension rather
than striking off.
[69]
A lack of insight by an attorney into what he did wrong would in
itself be an important factor which reflects adversely
on his
character and is a weighty consideration in militating against lesser
stricture than the removal from the roll.
[70]
The following
dictum
at para 81 from
Le Roux
is also
applicable in the present matter:
‘
His
misconduct is therefore of a far more serious nature than that of the
second and third respondents. He generally acted recklessly.
He
undoubtedly deserves a harsher sentence than the second and third
respondents. Members of the public must be protected from
attorneys
of his ilk.
The
first respondent’s
failure
to be accountable and his lack of honesty are seriously aggravating
and have a bearing on the sanction. Having considered
all the
circumstances of the case, I have no doubt that the only appropriate
sanction for the first respondent is for his name
to be struck from
the roll of attorneys.’
[71]
When considering all the relevant facts and circumstances of this
matter, I have no doubt that the only appropriate sanction
for the
respondent is that he be struck from the roll of legal
practitioners.
Costs:
[72]
The usual order in application such as the present is that costs are
to be paid by the respondent on an attorney and
client scale.
The applicant is seeking such an order. There is no reason to
deviate from the usual order.
[73]
The following order is consequently made in accordance with the
relief sought in the Notice of Motion:
1
The respondent, Mr John Masilo Koenane (‘the respondent’),
is struck from the roll of
legal practitioners of the High Court of
South Africa.
2
The respondent shall immediately surrender and deliver to the
Registrar of this court his certificate
of enrolment as a legal
practitioner of the Court.
3
In the event of the respondent failing to comply with the previous
paragraph of this Order, the
sheriff be and is authorized and
directed to take possession of the certificate and hand it to the
Registrar of this Court.
4
The respondent is prohibited from handling and operating on his
accounts as detailed in para 5 below.
5
Mrs Margarette Kwakye, being the Director of the Provincial Legal
Council of the Applicant; alternatively,
the Acting Director and/or
Nominee of the Provincial Legal Council of the applicant be and is
appointed as the
Curator Bonis
to administer and control the
trust accounts of the respondent and any account relating to
insolvent and deceased estates and any
deceased estate and any estate
under Curatorship connected with the respondent’s practice as
attorney and including, also,
the separate banking accounts opened
and kept by the respondent at a bank in the Republic of South Africa
in terms of
s 86(1)
of the LPA and/or any separate savings or
interest-bearing accounts as contemplated by
s 86(3)
and/or
s 86(4)
of the LPA, in which monies from such trust banking accounts have
been invested by virtue of the provisions of the said sub-sections
or
in which monies in any manner have been deposited or credited (the
said accounts being hereafter referred to as ‘
the trust
account
’) with the following powers and duties:
(a)
Immediately to take possession of the respondent’s accounting
records, records, files and documents
in relation to his practice as
a legal practitioner and to sign all forms and generally to operate
upon the trust account(s), but
only to such extent and for such
purpose as may be necessary to bring to completion current
transactions in which the respondent
was acting at the date of this
Order;
(b)
Where monies have been paid incorrectly and unlawfully from the
undermentioned trust accounts, to recover
and receive and, if
necessary in the interest of persons having lawful claims upon the
trust account(s) and/or against the respondent
in respect of monies
held, received and/or invested by the respondent in terms of
s 86(1)
and/or
s 86(3)
and/or
s 86(4)
of the LPA (hereinafter referred to as
‘
trust monies
’), to take any legal proceedings
which may be necessary for the recovery of money which may be due to
such persons in respect
of incomplete transactions, if any, in which
the respondent was and may still have been concerned and to receive
such monies and
to pay the same to the credit of the trust
account(s);
(c) To
ascertain from the respondent’s accounting records the names of
all persons on whose account the
respondent appears to hold or to
have received trust monies (hereinafter referred to as ‘
trust
creditors
’) and to call upon the respondent to furnish him,
within 30 (thirty) days after date of service of this Order or such
further
period as he may agree to in writing with the names and
addresses of and the amounts due to all trust creditors.
(d) To
call upon such trust creditors to furnish such proof, information
and/or affidavits as he/she may require
to enable him to determine
whether any such trust creditor has a claim in respect of monies in
the trust account(s) of the respondent
and, if so, the amount of such
claim;
(e)
Except where a trust deficit is determined, to admit or reject, in
whole or in part subject to the approval
of the LPFF Board, the
claims of any such trust creditor, without prejudice to such trust
creditor’s right of access to the
civil courts;
(f)
Having determined the amounts which he/she considers are lawfully due
to trust creditors, to pay such
claims in full, but subject to the
approval of the LPFF Board;
(g) In
the event of there being any surplus in the trust account(s) of the
respondent after payment of the admitted
claims of all trust
creditors in full to utilize such surplus to settle or reduce (as the
case may be), firstly, any interest due
to the Legal Practitioners’
Fidelity Fund in terms of
s 86(5)
of the LPA, secondly, any
curatorship fees and disbursements and costs and expenses payable by
the respondent in terms of this
Order and thirdly to pay such balance
to the respondent, or duly authorized representative/trustee/executor
subject to the terms
contained in this Order;
(h) In
the event of there being a trust deficit in the trust banking
account(s) of the respondent, in accordance
with the available
documentation and information, to pay the available balance in the
trust banking account(s) of the respondent
to the LPFF;
(i)
To appoint nominees or representatives and/or consult with and/or
engage the services of attorneys,
counsel, accountants and/or any
other persons, where considered necessary, to assist him/her in
carrying out his/her duties as
Curator; and
(j)
To render from time to time, as Curator, returns to the applicant
shown how the trust account(s) of
the respondent has/have been dealt
with.
6
That the respondent immediately delivers his/her said accounting
records, records, files and documents
containing particulars and
information relating to:
(a) Any
monies received, held or paid by the respondent for or on account of
any person while practising as an
attorney;
(b) Any
monies invested by the respondent in terms of
s 86(3)
and/or
s 86(4)
of the LPA;
(c) Any
interest on monies so invested which was paid over or credited to the
respondent;
(d) Any
estate of a deceased person or an insolvent estate or an estate under
Curatorship administered by the
respondent, whether as executor or
trustee or Curator or on behalf of the executor, trustee or Curator;
(e) Any
insolvent estate administered by the respondent as trustee or on
behalf of the trustee in terms of the
Insolvency Act 24 of 1936
;
(f)
Any trust administered by the respondent as trustee or on behalf of
the trustee in terms of the Trust
Property Control Act 57 of 1988;
(g) Any
company liquidated in terms of the
Companies Act 71 of 2008
,
administered by the respondent as or on behalf of the liquidator;
(h) Any
close corporation liquidated in terms of the
Close Corporations Act
69 of 1984
, administered by the respondent as or on behalf of the
liquidator; and
(i)
The respondent’s practice as an attorney of this court, to the
Curator appointed in terms of this
Order, provided that, as far as
such accounting records, records, files and documents are concerned,
the respondent shall be entitled
to have reasonable access to them
but always subject to the supervision of such Curator or his/her
nominee.
7
Should the respondent failed to comply with the provisions of the
preceding paragraph of this Order
the sheriff for the district in
which such accounting records, records, files and documents are, be
and is empowered and directed
to search for and to take possession
thereof wherever they may be and deliver them to such Curator.
8
That the respondent be and is hereby removed from office as –
(a)
Executor of any estate of which respondent has been appointed in
terms of
s 54(1)
(a)
(v) of the
Administration of Estates
Act 66 of 1965
or the estate of any other person referred to in
s
72(1)
thereof;
(b)
Curator or guardian of any minor or other person’s property in
terms of
s 72(1)
read with
s 54(1)
(a)
(v) and
s 85
of the
Administration of Estates Act 66 of 1965
;
(c)
Trustee of any insolvent estate in terms of s 59 of the Insolvency
Act 24 of 1936;
(d)
Liquidator of any company in terms of s 379(2) read with 379
(e)
of the Companies Act 71 of 2008;
(e)
Trustee of any trust in terms of s 20(1) of the Trust Property
Control Act 57 of 1988;
(f)
Liquidator of any close corporation appointed in terms of
s 74
of the
Close Corporations Act 69 of 1984
;
(g)
Administrator appointed in terms of s 74 of the Magistrates’
Court Act 32 of 1944.
9
That the Curator shall be entitled to:
(a)
Hand over to the persons entitled thereto all such records, files and
documents provided that a satisfactory
written undertaking has been
received from such persons to pay any amount, either determined on
taxation or by agreement, in respect
of fees and disbursements due to
the firm;
(b)
Require Claimants to provide any documentation or information which
the Curator may consider relevant in respect
of a claim or possible
or anticipated claim, against the Curator and/or respondent and/or
respondent’s clients and/or fund
in respect of money and/or
other property entrusted to the respondent provided that any person
entitled thereto shall be granted
reasonable access thereto and shall
be permitted to make copies thereof;
(c)
Publish this Order or an abridged version thereof in any newspaper
he/she considers appropriate;
(d)
Close the respondent’s practice insofar it relates to the
client files, records and trust accounts.
10 The
respondent shall within 6 (six) months after having been requested to
do so by the Curator, or within such
longer period as the Curator may
agree to in writing, satisfy the Curator, by means of the submission
of taxed bills of costs or
otherwise, of the amount of the fees and
disbursements due to him/her (respondent) in respect of his/her
former practice and should
he/she fail to do so, he/she shall not be
entitled to recover fees and disbursements from the Curator without
prejudice, however
to such rights, if any, as he/she may have against
the trust creditor(s) concerned for payment of recovery thereof.
11 A
bill of costs is to be drawn on the High Court scale of attorney and
client costs taxed by the Registrar
of this Court (who is authorized
to do so)
mutatis mutandis
as if the Curator and the
responsible officials of the applicant in discharging their duties as
contemplated in this Order had
acted as attorneys, shall constitute
proof of the reasonable fees and disbursements (‘the
curatorship fees and disbursements’)
and that the Registrar be
authorized to issue a writ of execution for payment thereof by the
respondent.
12 The
Curatorship will terminate when the Curator receives a final written
discharge from such duties from the
applicant consequent upon the
Curator filing with the applicant a final report and account together
with supporting vouchers, in
respect of the execution of the
Curator’s duties in terms of this Order.
13 In
the event of the respondent failing to comply with any of the
provisions referred to in this Order, the
applicant shall be entitled
to apply through due and proper civil process commensurate with the
principles of the Constitution
of the Republic of South Africa, Act
106 of 1996, for the appropriate relief against the respondent
including but not limited to
an Order for the committal of the
respondent to prison for the respondent’s contempt of the
provisions of the abovementioned
paragraphs.
14 The
respondent be and is hereby directed:
(a) To
pay, in terms of ss 87(2)/37(2)
(a)
of the LPA, the reasonable
costs of the inspection/investigation of the accounting records of
the respondent;
(b) To
pay the Curatorship fees and disbursements (obtained the appropriate
scale for attendances by the Curator
and to consider whether or not
to include the rate in the Court Order);
(c) To
pay the expenses relating to the publication of this Order or an
abbreviated version thereof; and
(d) To
pay the costs of this application on an attorney and client scale.
C
VAN ZYL
JUDGE
OF THE HIGH COURT
I
concur:
L
MPAMA
ACTING
JUDGE OF THE HIGH COURT
Appearances
For
the Applicant:
WA
van Aswegen
Instructed
by:
Symington
& de Kok Inc.
BLOEMFONTEIN
Ref:
FXK2397/T O’Reilly
For
the Respondent:
PS
Mphuloane
Instructed
by:
Koenane
Attorneys
BLOEMFONTEIN
e-mail:
koenaneattorneys@gmail.com