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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 20286/2022
In the matter between:
THE SOUTH AFRICAN LEGAL PRACTICE COUNCIL Applicant
and
ONKE MASETI Respondent
J U D G M E N T
This judgment was handed down electronically by circulation to the parties’ legal
representatives by email and uploading it to the electronic file of this matter on Caselines.
The date and time of hand-down is deemed to be 10:00 on 30 September 2025.
TEFFO, J (MBONGWE, J CONCURRING)
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
30/09/25
DATE SIGNATURE
Introduction
[1] The applicant (“the South African Legal Practice Council” ) seeks an
order for the removal of the respondent’s name from the roll of legal
practitioners, alternatively, for his suspension pending the finalisation of the
application. The respondent opposes the application.
[2] The respondent and the applicant did not file their answering and
replying affidavits timeously . Their respective condonation applications were
not opposed and were granted accordingly.
[3] In terms of the Legal Practice Act1 (“the LPA ”) the applicant has full
legal capacity to exercise jurisdiction over all legal practitioners.
[4] The respondent was admitted and enrolled as an attorney on 25 July
2012. He commence d practising as a partner under the name and style of
Maseti Attorneys, at Suite 1[…], First Floor, K[…] Towers, 1[…] Commissioner
Street, Johannesburg with effect from 1 August 2012. He continues to
practise as such, and his name is still on the roll of the legal practitioners of
this court.
Background facts
[5] The application stems from allegations of unprofessional conduct
against the respondent which can be grouped u nder the headings , the
complaints and failure to keep proper accounting records.
The complaints
1 Section 4 of Act 28 of 2014
[6] Between the period August 2016 to February 2022 several complaints
of unprofessional conduct were lodged against the respondent. They included
allegations that the respondent had failed to execute the mandate given to
him, to supervise and exercise proper control over his employ ees, to account
to or report to his clients at all, properly , promptly, fully, and timeously, had
delayed payments due and payable to clients and had failed to respond to
correspondence and provide information to the applicant when he was in a
position to do so.
[7] The complaints of Molisakeng, Tshabalala, Xaba and Mngomezulu are
all identical in that the former employees of the respondent’s firm , Ms Tumi
Modise (“Modise “) and Ms Mirriam Mot oeneng (“Motoeneng “), who were
secretaries at the time , took in structions from the complainants to do
conveyancing work for them. Amounts of money of R16 800,00, R347 150,67,
R7 500,00 and R2 500,00 and R158 304,92 were paid into the account of
Arnishs and Associates, a company where Modise was the sole dir ector. The
mandates were not executed in the said matters, and the complainants were
not refunded their monies . The complaint of Setlhare also followed the same
pattern save to say that it related to an estate matter and involved a certain Mr
Phiwo Bango (“Bango“). The amount of R4500,00 was deposited into Bango’s
personal account, and the complain ant was issued with a receipt which had
the details of the respondent’s firm.
[8] In response to only the complaints of Tshabalala and Xaba , the
respondent contended that the instructions were not authorised by him and/or
his firm, and he had no knowledge of the payments made . The payments
were never made into his firm’s accounts.
[9] The complaints of Mafuta and Motsai are similar. Mafuta instructed the
respondent to recover a debt that was due and payable to Vhaswa Cabli ng
Network (“Vhaswa”), one of his businesses, from Pick It Up (Pty) Ltd (“Pick It
Up”). The respondent obtained judgment in favour of Vhaswa for
R155 362,03. Motsai instructed the respondent to claim damages for unlawful
arrest against the Minister of Police. The respondent obtained judgment in his
favour against the Minister for the sum of R40 000,00. In both complaints the
respondent failed to report to the compla inants, did not account to them and
delayed the payments that were due and payable to them.
[10] In his response to the co mplaint of Mafuta, th e respondent confirmed
the instructions and alleged that after obtaining judgment, Pick It Up lodged
an appeal . It later contacted him and made an offer for payment of the
amount of R227 000,00 plus costs . He discussed the offer with Mafuta and
Mafuta gave him instructions to accept it. In an affidavit dated 22 December
2018, Mafuta confirmed the discussion of the offer with the respondent , the
acceptance thereof and agreed to the respondent’s fees of the amount of
R227 000,00 less 25% contingency fee.
[11] Haki Legal Clinic (“Haki”) which represented Mafuta in this matter ,
disputed the respondent ’s version regarding the appeal and the offer. It
averred that Mafuta did not have know ledge of the appeal and the offer. The
respondent was requested to provide the details of the offer , a costs
breakdown as well as the 25% fee due to him. He failed to provide same.
[12] The respondent’s answer to Motsai’s complain t was that he reported to
him that he was awaiting payment of the claim whereafter it would be paid to
him.
[13] In the complaints of Soji, Sithole and Mathabela , the respondent failed
to execute the mandate given to him, to report to them and to respond to their
complaints which were forwarded to him by the applicant . In Soji , the
respondent was instructed to su e Dial Direct Insurance (“Dial Direct”) for
payment in respect of her motor vehicle . In Sithole, the respondent was
instructed to assist him with a matter relating to unlawful arrest . Sithole
alleged that the respondent was avoiding him and failed to take his calls. He
sought the assistance of another attorney, but the respondent with held the
docket. In Mathabela, the respo ndent was instructed to act as a n agent to
assist her with the administration of a deceased estate in which Mathabela
was appoin ted as an executrix. The respondent failed to report to her, and
she was eventually removed as an executrix of the estate.
[14] Morkel (on behalf of Rodel Financial Property Services (Pty) Ltd
(“Rodel“) and represented by Le Roux Vi vier Attorneys complained that he
instructed the respondent to attend to a property sale transaction. Rodel paid
amounts of R80 278,17 and R20 000,00 on 11 and 21 September 2018
respectively as bridging finance to the respondent for the benefit of the seller
on condition that the respondent would pay Rodel the bridging finance and the
discounting fee on registration of transfer of the property. The respondent paid
an amount of R20 770,00 (which included costs ), to Rodel on 18 October
2018. After the registration of the transfer of the prop erty on 31 October 2018,
the respondent failed to pay the bridging finance. A year later, on 2 October
2019 Rodel obtained judgment against the respo ndent for payment of the
bridging finance.
[15] In his answer to the complaint, the respondent confirmed the civil
action against hi m and mentioned that a certain M areletse was joined in the
action. He denied the misappropriation of funds which were due and payable
to Ro del on registration of the transfer of the property . He c laimed that
Mareletse misled him, and he was in the process of trac king him to recover
the funds from him.
[16] Khosa complained that he never consulted or met the respondent.
However, the respo ndent impersonated as his legal representative in an
arbitration matter without proper instructions f rom him . He allege d that the
respondent was in fact, recommended to inter alia handle communica tions
including case management and to communicate with the Arbitration
Foundation of South Africa (“AFSA“). Although he did not disclose the amount
that he paid to the respondent, Khosa alleged that the respondent took money
from him under the circumstances he c ould not explain, and he never
furnished him with any report or statement of account . He requested the
respondent to explain the work he had done and on whose instruction he did
it. The respondent failed to respond to the complaint after it was forwarded to
him. In further c orrespondence the respondent was called to appear before
the Investigating Committee of the applicant for a discussion of the matter. He
failed to appear after he wrote back to the Comm ittee and stated that he was
sick and consulting a doctor.
Failing to keep proper accounting records
[17] This infraction include s amongst others, the respondent’s failure to
update and balance his firm’s accounting records regularly, to extract a list of
trust creditors at intervals of not less than three months as required in terms of
the regulations, to retain the trust accounting records of the firm at the firm’s
office, to ensure that withdrawals from the firm’s trust banking acco unt shall
be made only to or for a trust credi tor or as a transfer to the firm’s banking
account, provided that such transfer shall be made only in respect of money
due to the firm, etc.
[18] Mr D Swart (“Swart“) a chartered accountant, inspected the accounting
records of the respondent’s firm between March 2018 to February 2021 and
compiled a report dated 30 September 202 1. He mentions in the report that
when he visited the respondent’s offices on 22 July 2021 , the respondent’s
firm’s accounting records were not available. He was subsequently provided
with the trust cash books and trust creditors’ ledgers of the firm for the years
ended 28 February 2019 , 29 February 2020 , and 28 February 2021. He did
not receive any trust or business bank statements or monthly trust trial
balances, any trust accounting records from 1 March 2021 onwards as
requested in his email of 29 June 2021. There were no lists of client balances
available, and he decided to prepar e lists of trust creditors for the period 28
February 2019, 29 February 2020 and 28 February 2021 to determine the
respondent’s firm’s trust positions as at these dates.
[19] The trust positions as at the above three dates were as follows:
28/09/2019 29/02/2020 28/02/2021
List of trust creditors 333 683,74 131 432,26 46 373,20
List of trust bank balances 318 665,04 127 288,96 40 292,04
Trust shortage 15 018,70 4 143,30 6 081,61
[20] According to Swart all the above trust shortages were caused by the
excess of bank charges against bank interest on the trust banking account.
[21] Swart further explained that these trust shortages were increased by the
trust funds which, in terms of the complaints, should have been available in
the respondent’s firm’s trust banking account, but which were not. He referred
to the trust funds of Tshabalala in the amount of R347 260,67 which were
deposited on 10 March 2020 , t he trust funds of Rodel in the amount of
R100 278,71 which were deposited on 21 September 2018 and those of
Mngomezulu in the amount of R158 302,12 which were deposited on 16
January 2018.
[22] The above mentioned amounts according to Swart increased the trust
shortages as follows:
28/02/2019 29/02/2020 28/02/2021
Trust shortages 15 018,70 4 143,30 6 081,16
Ms Tshabalala 347 260,67
Rodel 100 278,71 100 278,71 100 278,71
Mr Mngomezulu 158 601,53 158 304,12 158 304,12
Adjusted trust shortage 273 601,53 262 726,13 611 924,66
[23] Swart concluded that the trust accounting records of the res pondent’s
firm were purely prepared and retained as a record but not used by the firm to
control and balance the firm’s trust positions or any of the trust creditors ’
balances. He found that the trust accounting records were incomplete and did
not contain sufficient detail of the transactions to identify the entrie s in the
trust ledger accounts of the trust creditors of the firm.
[24] In Swart’s opinio n, the trust shortage that relate to the trust funds of
Tshabalala and Mngomezulu was caused by the lack of control by the
respondent over his staff members as well as over the receipt of trust funds .
The non-payment of the trust funds due to Rodel was a further indication of
the respondent’s lack of control over the receipt and payment of trust funds.
Swart establishe d that the trust credito r’s ledger accounts which reflect the
receipt of funds from Rodel indicate that the funds were removed by the firm
from the firm’s trust account through the payment of fees.
[25] Swart discussed the complaints of Tshabalala, Mafuta, Motsai, Morkel on
behalf of Rodel, and Mngomezulu with the respondent. These discussions will
be referred to later in the judgment.
The respondent’s version
[26] The respondent denies the allegations against him. He contends that the
application has been instituted prematurely as he was never subjected to a
disciplinary hearing by the applicant.
The complaints
[27] In respect of the complaint of Setlhare, the respo ndent contends that
Bango was never employed by his firm . Regarding the complaints of
Molisakeng, Tshabalala, Xaba and Mngomezulu, he admit ted that Modise
was employed at his firm as a secretary between 2017 and 2019. He claimed
that he never took such instructions nor received any payment from any of the
complainants. He stated that he could not take such instructions as he has
never been admitted as a conve yancer. He has never met any of the
complainants. He asserted that he became aware of Ms Modise’s fraudulent
activities when the applicant wrote to him and informed him about a complaint
it had received from Xaba. Immediately thereafter, he dismissed Modise from
his employment. Subsequent thereto, he conducted his own investigation
which led him to Alberton Police Station where he got information that Modise
was at the time facing criminal charges of fraud and her case was pending in
court.
[28] With regard to the complaint of Mafuta , the respondent stood by what he
said in his response t o the complaint that was forwarded to him by the
applicant. In relation to Motsai ’s complaint, he confirmed the instruction by
him and agreed that Motsai was paid the amount due to him less his fees. He
asserted that th e matter was long resolved between him and Motsai and
Motsai has never proceeded further with the complaint. He referred to an
affidavit deposed to by Mr Motsai in confirmation thereof.
[29] The respondent confirmed receipt of instructions from Soji. He contended
that Soji only paid an amount of R3 500,00 for consultation and opening a file.
Soji undertook to make further payment s for the services to be rendered. He
started working on the process of drafting summons and had it issued without
any further payment from Soji. He claimed that Soji approached the applicant
to avoid paying his legal fees.
[30] The respondent denie d the allegations made by Sithole and submitted
that despite having not carried out the mandate to finality, it is not disputed
that he performed some work and had rendered the statement of account to
Sithole for payment which is still pending. He claim ed that Sithole sought to
avoid payment and decided to terminate his mandate. Sithole instructed
Mashele Attorneys who have requested the file. He confirmed that he refused
to hand over the file to Mashele Attorneys as security for the payment of his
fees.
[31] Regarding the claim of Mathabela , the respondent contended that
Mathabela was duly informed that she had been removed as an executrix and
that there is a pending application to have her removal as executrix
challenged.
[32] In the complaint of Morkel (on behalf of Rodel) and represented by Le
Roux Vivie r Attorneys , t he respondent denies the allegations and contends
that payment has been made to Rodel which disposes of the matter . He
claims that in this matter his firm only acted as surety and the firm never
squandered any money save for the fact that payment was made in error and
this was later rectified.
[33] T he respondent denies the allegations against him by Khosa . He
contends that Khosa had a matter against Bowman Gilfillan Attorneys, and
the matter was set down for arbitration under the auspices of AFSA. He
claims to have objected to the arbitration because Bowman Gilfillan Attorneys
is one of the founders of AFSA and the matter was therefore postponed sine
die.
Failing to keep proper accounting records
[34] The respondent disputed Swart’s report. He denie d that there were trust
shortages as alleged as far as they relate to monies that were clearly never
paid into his business nor trust accounts but to other people who were not
acting on his behalf and/or the firm . He submitted that Swart’s report clearly
demonstrates that he was not responsible for the alleged trust shortages as
these funds were never received by him or his firm.
The issue for determination
[35] The questions for consideration in this case entail a three-stage enquiry:
(a) Whether the alleged offending conduct has been established on a
preponderance of probabilities,
(b) Once the court is satisfied that the offending conduct has been
established, it must consider whether the practitioner concerned is
a fit and proper person to continue to practise. 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,
(c) If the court is of the view that the practitioner concerned is not a
fit and proper person to practise as an attorney, it must inquire whether in all
the circumstances the practitioner in question is to be removed from the roll of
attorneys or whether an order of suspension from practice would suffices2.
Applicable legal principles
[36] It is trite that the court’s jurisdiction and power to exercise disciplinary
jurisdiction over the legal practitioners and to pronounce upon an appropri ate
sanction is not derived solely from the provisions of sections 40(3)(a)(iv) and
44(1) of the LPA. The court has such inherent and common law power.
[37] The proceedings instituted by the applicant against members of the
legal profession (“ the legal pr actitioners”) are of a disciplinary nature and are
sui generis3. The Appellate Division in Solomon v Law Society of the Cape of
Good Hope4, described the proceedings as follows:
“Now in these proceedings the Law Society claims nothing for itself … It
merely brings the attorney before court by virtue of a statutory right, informs
the court what the attorney has done and asks the court to exercise its
disciplinary powers over him … The Law Society protects the interests of the
public in its dealings with attorneys. It does not institute any action or civil
proceedings against the attorney. It merely submits to the court facts which it
2 Jasat v Natal Law Society 2000 (3) SA 44, [2000] 2 All SA 310 (SCA) at para 10
3 Hepple and Others v Law Society of the Northern Provinces [2014] ZASCA 75; [2014] 3 All
SA 408 (SCA) para 9; Cirota and Another v Law Society, Transvaal [1979] 1 All SA 179 (A);
1979 (1) SA 172 (A) at 187
4 1934 AD 401 at 408-409
contends constitute unprofessional conduct and then leaves the court to
determine how it will deal with this officer [of the court].”
[38] Where allegations and evidence are presented against an attorney,
they cannot be met with mere denials by the attorney concerned. If the
allegations are made by th e Law Society and the 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 explanation5.
[39] When the court admi ts an attorney to the profession, he is put in a
position to conduct matters of trust with the public. He occupies a position of
great confidence and power, and the court is entitled to demand a very high
standard of honour from him in the profession. The law exacts from him
uberimma fides where he acts as agent for others; that is the highest possible
degree of good faith. It is, therefore, essential that the public should be able to
rely implicitly on the integrity and good faith of any attorney they may wish to
employ. If the court, having regard to all the circumstances brought before it,
is no longer justified in regarding an attorney as a fit and proper person to be
entrusted with the important duties and grave responsibilities which belong to
an attorney, it should either remove him from the roll of attorneys or suspend
him from practice. For the sake of the public, and no less the profession, it is
of utmost importance to enforce on all attorneys the high standard of duty
5 Hepple and others v Law Society of the Northern Provinces supra at para 9
which rests upon them and d emand the great integrity which is expected of
them6.
[40] In General Council of the Bar of South Africa v Geach & others 7, the
SCA had this to say in relation to legal practitioners:
“After all they are the beneficiaries of a rich heritage and the mantl e of
responsibility that they bear as the protectors of our hard -won freedoms is
without parallel. As officers of our courts, lawyers play a vital role in upholding
the constitution and ensuring that our system of justice is both efficient and
effective. I t therefore stands to reason that absolute personal integrity and
scrupulous honesty are demanded of each of them. It follows that generally a
practitioner who is found to be dishonest must surely in the absence of
exceptional circumstances expect to have his name struck from the roll.”
[41] The court and the applicant have a duty to act where a legal
practitioner’s conduct falls short of what is expected, and to curb the erosion
of the values in the profession. The protection of the public goes hand in han d
with the court’s obligation to protect the integrity of the courts and the legal
profession. Public confidence in the legal profession and the courts is
necessarily undermined when the strict requirements for membership to the
profession are diluted.
Discussion
6 Incorporated Law Society, Transvaal v Visse and others, Incorporated Law Society v Viljoen
1958 (4) SA 115 (T) at 131D-G
7 2013 (2) SA 52 (SCA) at para 87
[42] Before addressing the questions raised in this application, I find it
prudent to consider the respondent’s contention that this application is
premature, it was not supposed to have been brought to court without him
being called to a disciplin ary hearing. In his supplementary heads of
argument, a submission was made that the respondent feels that he has been
denied the opportunity to have the facts set out in his supplementary
answering affidavit investigated internally. It was further submit ted that on 11
October 2024 when this application was postponed to allow the applicant to
file a supplementary replying affidavit, the court expressed the view that the
applicant may need to revisit its internal inquiry.
[43] When this issue was raised aga in during argument, Ms Moolman for
the applicant submitted that the respondent had many opportunities to answer
to the allegations made against him. He was not co -operative at all. Various
correspondences were addressed to him inviting him to respond to the
complaints lodged against him. However, he failed and/or neglected to
respond and/or responded long after the correspondences were sent to him.
[44] Furthermore, the LPC invited him to an Investigating Committee meeting.
He failed to appear on the day. It took Swart months to get the respondent to
cooperate to allow him to inspect the firm’s accounting records. In the replying
affidavit the applicant contends that there is no obligation on it to first exhaust
any procedure in terms of its own Rules prior to instituting proceedings
against a legal practitioner.
[45] While we agree with Ms Moolman that referral to an internal disciplinary
hearing is not a prerequisite for bringing an application of this nature to court,
the history of this matter, attest to the difficulties the applicant encountered in
having the respondent to respond to the correspondence sent to him.
Considering a series of correspondence addressed to him, we agree that it
would not have been po ssible for the applicant to conduct a disciplinary
hearing against the respondent. The respondent is facing serious allegations
of misconduct, the application had to come to court. Having said that, it is our
view that the contentions by the respondent are meritless.
Has the offending conduct been established on a preponderance of
probabilities?
[46] This is a factual inquiry. All the facts should be considered in totality.
Complaints of Molisakeng, Xaba, Mngomezulu and Tshabalala
[47] These are the complaints where the former employees of the respondent,
Modise and Motoeneng were involved. In the respondent’s heads of
argument, the following submissions were made: that the duties of Modise did
not include consulting and taking instructions from clients. M odise had always
known that the respondent is not an admitted conveyancer and does not take
conveyancing work from clients. The applicant chose to ignore the bank
deposits attached to the founding affidavit which indicate that the payments by
the complaina nts were made to Arnishs and Associates. The applicant
elected not to follow the money but the respondent even in the face of glaring
evidence pointing to the contrary.
[48] In submitting that the respondent failed to supervise and exercise control
over his employees and staff, Ms Moolman referred us to the case of the
Law Society of the Transvaal v Malatji8, where the Court had this to say:
“… It is equally fine that attorneys may have to leave the
handling of matters and taking of administrative, managerial, and
professional decisions in the hands of the partners and of junior
staff members. The attorney does not by so doing escape
personal responsibility. The respondent cannot place the blame
for the manner in which trust money wa s handled on his
candidate attorney or his staff. The respondent’s duty towards
the preservation of trust monies is a fundamental, positive and
unqualified duty. In failing to personally supervise his candidate
attorneys or staff in their handling of trust moneys, the
respondent has breached his duty.”
[49] The respondent further explained that upon investigation, it was
established that Arnishs and Associates was a private company that was
registered on 14 June 2018 with Modise as its sole director.
[50] In all the above matters the respondent contends that he has never
authorised Modise and Motoeneng to do any conveyancing work and/or
receive money on his behalf and/or the firm. It is common cause that all the
monies paid by these complainants were never deposited into the trust
banking account of the firm. They were all paid into the banking account of
Arnishs and Associates. The respondent further contended that the infractions
8 2004 JDR 0087 (T) para 19
took place in his absence, and he could not have been expected to supervise
and exercise control over the employees who were mere secretaries and not
authorised to consult and take instructions on his behalf or the firm.
[51] He f urther mention ed that Motoeneng listed herself on LinkedIn as a
legal specialist at Arnishs and Associa tes from September 2018 to May 2022.
She together with Modise ran a scheme using the company Arnishs and
Associates to defraud the public.
[52] The argument on behalf of the respondent which purports to blame his
former employees for what happened, loses sight of the fact the respondent
has a duty towards the preservation of trust monies which is fundamental,
positive and unqualified. In our view the respondent has breached this duty. It
follows that he is guilty of unprofessional conduct in that he failed and/or
neglected to personally supervise his employees in their handling of trust
moneys in contravention of clause 18.3 of the Code of Conduct. It is
immaterial that the infractions happened in his absence and were not
authorised by him.
[53] The resp ondent did not take the instructions from the complainants.
He was not aware of these instructions and did not authorise them. We are
not persuaded that he contravened clause 3.1, 3.11 and 18.4 of the Code of
Conduct. The funds paid by the complainants were never deposited into the
trust and business accounts of the firm. He did not benefit from these fu nds.
He also did not contravene Rule 54.13 of the LPC Rules.
[54] In the matters of Tshabalala, Xaba, and Mngomezulu, the respondent
has also been a ccused of failure to account faithfully, accurately and
timeously for his client’s money which came into his possession, keep such
money separate from his own money, and retain such money for so long as is
strictly necessary in breach of clause 3.8 of the Code of Conduct. As said
earlier the respondent did not consult and/or take instructions from these
complainants. We are therefore not persuaded that the respondent
contravened clause 3.8 of the Code of Conduct.
[55] The respondent was also accused of contravening Rule 54.12 of the
LPC Rules in the matter of Mngomezulu in that he failed within a reasonable
time after the performance or earlier termination of the mandate received from
the complainant, to furnish the com plainant with a written statement of
account setting out with reasonable clarity: details of all amounts received by
him in connection with the matter, appropriately explained; particulars of all
disbursements and other payments made by him in connection with the
matter; fees and other charges charged to or raised against the client and,
where any fee represents an agreed fee, the amount due to or owed by the
client. The evidence does not prove the contravention of Rule 54.12 of the
LPC Rules.
[56] The c omplaints of Molisakeng and Mngomezulu were sent to the
respondent in various correspondences, and he simply did not respond. We
are persuaded that the respondent contravened clauses 16.1, 16.2 and 16.3
of the Code of Conduct.
[57] In the matter of Set lhare, the respondent is also accused of
contravening the provisions of Clauses 3.1, 3.11, 18.14, 18.3, and 16.1 to
16.3 of the Code of Conduct as well as Rule 54.13 of the LPC Rules. The
complaint was forwarded to the respondent on 10 February 2022. He d enies
receiving it. The correspondence shows that the complaint was sent to the
same email address that has been used in the other complaints. The
contention by the respondent that he did not receive th is complaint, can
therefore not be true. There can be no doubt that the respondent received the
complaint and failed and/or neglected to respond to it in contravention of
clauses 16.1 to 16.3 of the Code of Conduct.
[58] In the supplementary answering affidavit, the respondent further states
that he does not know how Bango came into possession of the receipt book of
his firm as he was never employed by the firm. He also states that he laid
criminal charges against Bango. The applicant contends that when this
matter was postponed to allow the respondent to f ile a supplementary
answering affidavit, the court requested the respondent’s Counsel to indicate
in the respondent’s papers where he explained his relationship with Bango or
where he indicated that he does not know him. Even in the supplementary
answering affidavit the respondent did not address the issue. He does not
deny that he knows Bango.
[59] Taking into account that it is common cause that Setlhare met Bango in
the mall and also deposited the money into Bango’s personal account, it is
evident that t he respondent and or the firm ha ve never benefited from these
funds. The receipt issued to Setlhare although it has the details of the
respondent’s firm, does not indicate whether the money was paid in the trust
or business account of the firm. In my vie w the applicant’s argument is
neither here nor there as it does not take this matter any further. There is
therefore no evidence to prove that the respondent contravened clauses 3.1,
3.11, 18.14 of the Code of Conduct. There is also no evidence that Bango
was employed by the respondent’s firm. We are not convinced that the
respondent breached clause 18.3 of the Code of Conduct.
Mafuta, Soji, Le Roux Vivier Attorneys, Sithole, Khosa, Mathabela and Motsai
[60] Regarding the complaint by Mafuta, it appears that the respondent did
not update him of the progress in the matter. The reason for the complaint
was that the respondent did not account to him and pay over the money that
he instructed him to claim against Pick It Up. Mafuta was not aware of th e
appeal against the judgment that was granted in his favour. Even though the
respondent confirmed to Swart that Mafuta was paid his money during 2018,
the respondent has not supplied the information that was requested by the
applicant and Swart . This is despite the fact that the respondent had
indicated that he had requested Pick It Up to furnish him with a remittance
order which he intended to include it in his response. The respondent did not
come clean in this matter. In his heads of argument, it was submitted that the
particulars of claim clearly gave a breakdown of how the amount of
R155 362,30 claimed, was arrived at and that he had properly accounted to
Mafuta. It is the respondent who indicated that after judgment was granted in
favour of Mafuta and/or his business, Vhaswa , he received an offer from Pick
It Up in the amount of R227 000,00. Swart reported that in the judgment, Pick
It Up was also ordered to pay legal costs. Swart was unable to identify receipt
of such legal costs in the trust cash book of the firm.
[61] The respondent is a senior legal practitioner. He is expected to provide
the LPC with sufficient information and reply fully and accurately to the
complaint lodged against him. The information that he has provided is not
supported by any evidence. He should have attached a copy of the judgment,
proof of the notice of appeal together with the offer he received , and the
acceptance of the offer. The Court is in the dark as to what happened, when
was the judgment granted, when was the offer made and accepted, and when
was the payment received . There is also no proof of payment to the
complainant and the date it was made . The fact that Mafuta’s affidavit
confirms that he accepted the payment , does not resolve the issues at hand.
It is evident that the respondent did not account to Mafuta, did not handle this
matter properly , and delayed payment of his money which was due and
payable to him . In our view the respondent failed to maintain the highest
standard of honesty and i ntegrity. He therefore contravened clauses 3.1, 3.8,
and 16.2 to 16.3 of the Code of Conduct together with Rules 54.12 and 54.13
of the LPC Rules.
[62] In respect of Soji’s complaint, the respondent was given instructions
during April 2019. However, he onl y issued summons on 8 September 2020.
The applicant received this complaint on 15 May 2020. There are no details
as to how much Soji paid the respondent although the respondent states in
his answering affidavit that she only paid an amount of R3 500,00 which was
for opening the file and consultation. He also mentions that Soji promised to
make further payments which she did not effect. He executed the mandate
notwithstanding the non-payment.
[63] The respondent does not explain why he only issued summons more
than a year after he received instructions from Soji and he does not attach
proof of a statement of account indicating the amount of work he had done,
and the fees Soji was supposed to pay him.
[64] The respondent failed to respond to the comp laint after 5 (five) letters
were addressed to him by the applicant. The answering affidavit was
deposed to on 19 June 2022, almost 2 (two) years after the complaint was
sent to him. He does not explain what happened after Dial Direct Insurance
had filed the notice of intention to defend the matter. It is evident that this
matter was not properly handled. We agree that the respondent contravened
clauses 3.1, 3.11, 18.14 and 16.1 to 16.3 of the Code of Conduct.
[65] Regarding the complaint lodged by Le Rou x Vivier Attorneys on behalf
of Morkel (Rodel) , the fact that the respondent has now paid the money he
owed to Rodel and that the matter has been resolved between the parties ,
does not take away the fact that the money that was held in trust on behalf of
a client, Rodel, for a specific purpose was not available upon the transfer of
the property to fulfil that purpose. Rodel paid the funds in the trust account of
the firm as bridging finance and in paragraph 7 of the undertaking by the
respondent dated 2 September 2018, the respondent’s firm undertook to pay
Rodel money from the proceeds of the transfer within 72 hours of the
registration of the transfer/receipt of funds.
[66] Summons was issued against the respondent’s firm because it could
not pay the funds as agreed. According to Swart the amounts of R80 278,17
and R20 000,00 received from Rodel on 11 and 21 September 2018
respectively, were paid into the trust banking account of the firm. On 18
October 2018, an amount of R20 770,00 (inclusive of interest ) was paid to
Rodel from the firm’s business banking account. The respondent’s firm’s trust
creditor’s ledger accounts which reflected receipt of the two amounts from
Rodel, indicated that the trust funds in these accounts were removed from the
firm’s trust account through the payment of fees. No p ayments were made to
the seller and to Rodel. The seller of the property did not receive bridging
finance as alleged by the respondent’s firm. The seller did not owe Rodel or
the respondent’s firm any funds. We agree with Swart that there was therefore
a trust shortage in respect of the trust money received from Rodel in the total
amount of R100 278,71 from the period 28 February 2019 to 28 February
2021.
[67] It is very concerning that the version of the respondent in respect of this
matter was that the seller (Mr Moreletse) borrowed the money received from
Rodel and that the seller misled the respondent by not telling him that he
borrowed that money whereas in fact it was the respondent who borrowed the
money. As per Swart’s report the funds were not eve n borrowed on behalf of
the seller. These funds were immediately transferred to the respondent’s
firm’s business account. In the answering affidavit the respondent stat ed that
his firm merely acted as a surety and the payment that was not available to
Rodel which was later rectified, was made in error.
[68] It appears that after judgment was obtained against the respondent’s
firm on 2 October 2019 for the sum of R101 698,05, the respondent
negotiated the terms of the repayment of the debt with Rodel and he signed
an acknowledgement of debt on 20 July 2021 in terms of which the firm
agreed to pay the settlement amount of R200 000,00 in six monthly
instalments of R33 333,33 from 31 July 2021 to 31 December 2021. Swart
reported that as at the date of his repor t on 30 September 2021, no
instalments were paid and the full amount of R200 000,00 was still due and
payable to Rodel.
[69] Without explaining how the full amount due and payable to Rodel had
been paid and not even attaching any form of proof of payment, the
respondent just attached an email from Rodel’s attorneys stating that the
matter has been settled between the parties and that the amount due and
payable has been paid in full.
[70] Three letters were addressed to the respondent relating to th is
complaint, with the last letter sent on 23 June 2020. He only responded on 12
October 2020.
[71] We are satisfied that the respondent has contravened clauses 3.1, 3.8,
16.1 to 16.3 of the Code of Conduct and Rule 54.13 of the LPC Rules.
[72] The response of the respondent in the answering affidavit to the
complaint of Sithole is extremely deficient. He is being accused of failing to
execute an instruction given to him by a client and that he has been avoiding
to take his calls. However, withou t explaining and attaching any proof of what
he had done as alleged, he makes bald allegations that although he did not
carry out the mandate to finality, there is no dispute that he performed some
work. He further says he rendered an account to Sithole an d payment is still
pending. It appears that Sithole terminated his mandate because he was
unhappy with his performance. He arrogantly mentions that he refused to
hand over the file to Mashele Attorneys as security for the payment of his
fees. The attitud e displayed here, and the response thereof , do not accord
with the conduct that is expected of an attorney.
[73] Five letters were addressed to the respondent relating to the complaint
of Sithole. The respondent failed and/or neglected to answer any of the
letters. He has not been cooperative with the applicant.
[74] In our view, the respondent’s conduct is, inter alia, in contravention of
the following provisions of the Legal Practice Act, the Code of Conduct and
the LPC Rules: clauses 3.1, 3.11, 18.14, 16.1 to 16.3 of the Code of Conduct.
[75] The applicant in the matter of Khosa, has accused the respondent with
serious allegations which are very concerning that he fraudulently
masqueraded as his firm ’s representative in an arbitration matter without
proper instructions from him. He also took money from him under
circumstances he c ould not explain and has never furnished him with any
report or statement of account. Although the details of how much money was
paid to the respondent are not there, the respo ndent did not come clean in
this matter. Numerous correspondences were sent to him by the applicant
including the correspondences that called him to a meeting with the
Investigation Committee. The respondent elected not to answer to the letters
sent to him and only on the day of the meeting, he sent an email stating that
he was sick. He did not cooperate with the applicant. In his answering affidavit
he does not give a proper answer to the complaint. He does not explain how
he got the instruction to represent Sithole in the arbitration. He just denies the
allegations. The respondent must state full facts to counter the allegations
against him. He failed to do so. We are persuaded that he contravened the
provisions of the LPA, the Code of Conduct and the LPC Rules.
[76] The respondent did not respond to the correspondence addressed to
him relating to the complaint of Mathabela. In the answering affidavit he barely
denies the allegations without attaching any proof of the statements he made.
As an agent who has been instructed to assist the executrix in an estate, the
respondent is supposed to have kept Ms Mathabela informed about what was
happening in the estate. He does not submit the progress report that he gave
her. There is nothing to support the allegations he made. Ms Mathabela is
armed with a letter from the Master which states that she had been removed
as an executrix. She did not hear it from the respondent but the Master. This
is a clear indication that the respondent has failed to execute his mandate.
[77] Also in this matter the respondent has not been cooperating with the
applicant. More than three letters were sent to the respondent which related to
this complaint. The respondent failed/neglected to answer even when he was
notified that the Investigating Committee of the applicant had recommended
that he be charged. We are persuaded that the respondent’s conduct is in
contravention of the provisions of the LPA, the Code of Conduct and the
Rules in particular clauses 3.1, 3.11, 18.14, and 16.1 to 16.3.
[78] In the complaint of Motsai , the court notes that the matter has been
resolved between the respondent and Motsai. Be that as it may , the
respondent still did not furnish the applicant with the information it requested.
The respondent’s reply to this complaint is as good as no response a t all.
Whilst there is proof that judgment in this matter was granted on 26 January
2015, there are no details as to when payment was made and what kind of
the fee arrangement was in place. Swart reported that it appears that the
respondent’s firm only acknowledged payment to Motsai on 2 December 2017
which is a period of almost three years after judgment was obtained in
Motsai’s favour. Whereas Motsai stated that there was a contingency fee
agreement in place, when the respondent was requested to furnish a copy, he
indicated that the Motsai had not signed any contingency agreement.
[79] There are no details as to how the matter was resolved. There is no
reason why the respondent failed and/or neglected to provide the information
requested by the applicant . It is not known how the amount that was paid to
Motsai was calculated. The respondent has failed to account to Motsai ,
delayed payment to him and elected not to provide the applicant with the
information it requested making himself guilty of unprofessio nal or
dishonourable conduct in contravention of clauses 3.1, 3.8 and 16.1 to 16.3 of
the Code of Conduct as well as Rules 54.12 and 54.13 of the LPC Rules.
Is the respondent a fit and proper person to continue to practice?
[80] This enquiry entails a value judgment which involves the weighing up of
the conduct complained of against the conduct expected of an attorney.
[81] In Kekana9, Hefer JA stated that absolute integrity a nd scrupulous
honesty are demanded from legal practitioners and that those who ha ve
demonstrated a lack of those qualities cannot be expected to play their part.
9 Kekana v Society of Advocates of South Africa 1998 (4) SA 649 (SCA), [1998] 3 All SA 577
(A) at 656A-B
In this matter in casu, the conduct of the respondent demonstrates a lack of
these necessary qualities. The respondent has not cooperated with the
applicant to allow it to conduct proper investigation of the complaints against
him. The applicant wrote him several letters whic h he elected not to answer
when he was in a position to do so. In some complaints he did not respond
within a reasonable time to allow the applicant to further investigate the
matters. In the complaints of Motsai and Mafuta, the applicant requested the
respondent detailed information as to how he had calculated the amounts
paid to the complainants, whether there was a fee structure in place, proof of
the payment of the trust money to the firm , etc. The respondent just
responded by saying the matters have been resolved between the parties.
[82] Furthermore, the respondent repeatedly contended that he was not
admitted as a conveyancer and has never taken instructions to do such work
when he was confronted with the complaints where his former employees
defrauded members of the public. It was established in the complaint of
Morkel on behalf of Rodel that he took instructions to transfer immovable
property and money was paid into the respondent’s firm as bridging finance.
He also signed an undertaking t o transfer immovable prop erty. Furthermore,
he lied under oath when he stated that his firm only acted as surety when in
fact that was not the case . Moreover , his version regarding the amount of
money that was paid in trust by Rodel, leaves much to be desired.
[83] In most of the complaints as discussed above, the responses are very
sketchy. He had many opportunities to come forth with information, but he
failed to do so. He still has not disclosed where he took instructions from
Khosa whom he represented in an a rbitration and how the payment by Khosa
was made. He has not been honest and has not displayed absolute integrity
expected of him as an attorney. We are therefore not persuaded that the
respondent can be considered as a fit and proper person to be allowe d to
continue to practise as a member of the legal profession.
The appropriate sanction
[84] In determining the appropriate sanction, the court is not imposing a
penalty. The main consideration is the protection of the public10.
[85] It is never easy to impose the ultimate sanction on an attorney as it has
the effect of terminating his means of livelihood, with adverse consequences
to himself, and his family. Before imposing such a sanction, a court must be
satisfied that the lesser stricture of suspension from practice will not achieve
the court’s supervisory powers over the conduct of an attorney. These
objectives have been described as twofold: first, to discipline and punish the
errand atto rney and, second, to protect the public, particularly where trust
funds are involved11.
[86] An attorney’s duty in regard to the preservation of trust money is a
fundamental, positive and an unqualified duty. Neither negligence nor
wilfulness is an element of a breach of such duty. Where trust money is paid
to an attorney, it is his/her duty to keep it in his/her possession and use it for
no other purpose than that of trust. It is inherent in such a trust that the
attorney should at all times have availab le liquid funds in an equivalent
10 Malan & Another v Law Society, Northern Provinces 2009 (1) SA 216 (SCA) par 7
11 Summerley v Law Society, Northern Provinces 2006 (5) SA 613 (SCA) at para 19
amount. The very essence of a trust is the absence of risk. It is imperative
that trust money in the possession of an attorney should be available to
his/her client the instant it becomes payable. Trust money is generally
payable before and not after demand12.
[87] Mr Ndlovu for the respondent argued that the respondent should not be
punished for the trust shortage of the funds which his former employees
pocketed when they defrauded the complainants. The evidence is clear t hat
the amounts paid by Tshabalala and Mngomezulu were not paid in the
respondent’s firm’s banking accounts, and he did not authorise the payments
thereof. Those payments were paid in the account of Arnishs and Associates
the company of Modise. We cannot therefore hold the respondent responsible
for the trust shortage that involve such funds. However, the evidence proves
that there was a trust shortage which relate to the amount of R100 271,71
which was paid by Rodel as bridging finance. This amount which w as
supposed to be paid to Rodel upon registration of transfer of the immovable
property was not available for that purpose at the time. This led to the
institution of an action against the respondent’s firm for recovery of same and
judgment was eventually obtained against the respondent’s firm.
[88] Although it appears that the complaint of Rodel has been resolved in
that the respondent had finally paid the amount that was due and payable to
Rodel, this does not take away the fact that as at the time of Mr Swart’s
report, the trust shortage was still there and Rodel was not paid any cent in
terms of the acknowledgement of debt signed by the respondent.
12 See: Law Society, Transvaal v Matthews 1989 (4) SA 389 (T) at 394
[89] In Malan13, it was held that if the Court finds dishonesty in the conduct
of a legal practitioner, the circumstances must be exceptional before a Court
will order a suspension instead of a removal.
[90] The conduct of the respondent in the above matters and the extent to
which it reflects on his character, clearly indicates that he is not worthy to
remain in the ranks of the profession. The court has to protect the public from
this kind of conduct. We cannot find any exceptional circumstances that
would justify a lesser sanction. It, therefore, follows that the appropriate
sanction under the circumstances is to have the name of the respondent
struck off the roll of attorneys (legal practitioners).
Costs
[91] Given the nature of these proceedings and the role that the applicant
fulfils as amicus curiae,14 the applicant is entitled to its costs on attorney and
client scale.
[92] In the result the following order is made:
1. That the name of Onke Maseti (hereinafter referred to as the
respondent) be removed from the roll of legal practitioners of this Court.
2. The respondent immediately s urrenders and deliver to the registrar
of the Honourable Court his certificate of enrolment as a legal
practitioner of this Honourable Court.
13 Supra at 221D-F, see also General Bar Council of South Africa v Geach & Others supra
14 Law Society of the Northern Provinces v Le Roux 2012 (4) SA 500 GNP at 502E-F
3. That in the event of the respondent failing to comply with the terms
of this order detailed in the previous pa ragraphs within two (2) weeks
from the date of this order, the Sheriff of the district in which the
certificate is, be authorised and directed to take possession of the
certificate and to hand it to the registrar of this Honourable Court.
4. That the respondent be prohibited from handling or operating on the
trust accounts as detailed in paragraph 5 hereof.
5. That Ignatius Wilhelm Briel, the Director of the Gauteng Provincial
Office of the applicant or any person nominated by him, be appointed as
curator bonis (curator) to administer and control the trust accounts of the
respondent, including accounts relating to insolvent and deceased
estates and any deceased estate and any estate under curatorship
connected with the respondent’s practise as a legal pra ctitioner and
including, also, the separate banking accounts opened and kept by
respondent at a bank in the Republic of South Africa in terms of section
86(1) and (2) of Act No 28 of 2014 and/or any separate savings or
interest-bearing accounts as contempl ated by section 86(3) and/or
section 86(4) of Act No 28 of 2014, in which monies from such trust
banking accounts have been invested by virtue of the provisions of the
said sub -sections or in which monies in any manner have been
deposited or credited (the said accounts being hereafter referred to as
the trust accounts), with the following powers and duties:
5.1 immediately to take possession of the respondent’s
accounting records, records, files and documents as
referred to in paragraph 6 and subject to the approval of
the Legal Practitioners’ Fidelity Fund Board of Control
(hereinafter referred to as the fund) t o 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;
5.2 subject to the approval and control of the Legal
Practitioners’ Fidelity Fund Board of Control and where
monies had been paid incorrectly and unlawfully from the
undermentioned trust accounts, to recover and receive
and, if necessary in the interests of persons havin g lawful
claims upon the trust account(s) and/or against the
respondent in respect of monies held, received and/or
invested by the respondent in terms of section 86(1) and
(2) and/or section 86(3) and/or section 86(4) of Act No 28
of 2014 (hereinafter refe rred to as trust monies), to take
any legal proceedings which may be necessary for the
recovery of money which may be due to such persons in
respect of incomplete transactions, if any, in which the
respondent was and may still have been concerned and to
receive such monies and to pay the same to the credit of
the trust account(s);
5.3 to ascertain from the respondent’s accounting records the
names of all persons on whose account the respondent
appear to hold or to have received trust monies (hereinafter
referred to as trust creditors) and to call upon the
respondent to furnish him, within 30 (thirty) days of the date
of service of this order or such further period as he may
agree to in writing, with the names, addresses and
amounts due to all trust creditors;
5.4 to call upon such trust creditors to furnish such proof,
information and/or affidavits as he may require to enable
him, acting in consultation with, and subject to the
requirements of the Legal Practitioners’ Fidelity Fund
Board of Control, to dete rmine 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
approval of the Legal practitioners’ Fidelit y Fund Board of
Control, the claims of any such trust creditor or creditors,
without prejudice to such trust creditor’s or creditors’ right
of access to the civil courts;
5.6 having determined the amounts which he considers are
lawfully due to trust credi tors, to pay such claims in full but
subject always to the approval of the Legal Practitioners’
Fidelity Fund Board of Control;
5.7 in the event of there being any surplus in the trust
account(s) of the respondent after payment of the admitted
claims of all trust creditors in full, to utilise such surplus to
settle or reduce (as the case may be), firstly, any claim of
the fund in terms of section 86(5) of Act No 28 of 2014 in
respect of any interest therein referred to and, secondly,
without pre judice to the rights of the creditors of the
respondent, the costs, fees and expenses referred to in
paragraph 10 of this order, or such portion thereof as has
not already been separately paid by the respondent to the
applicant, and, if there is any balanc e left after payment in
full of all such claims, costs, fees and expenses, to pay
such balance, subject to the approval of the Legal
Practitioners’ Fidelity Fund Board of Control, to the
respondent, if he is solvent, or, if the respondent is
insolvent, to the trustee(s) of the respondent’s insolvent
estate;
5.8 in the event of there being insufficient trust monies in the
trust banking account(s) of the respondent, in accordance
with the available documentation and information, to pay in
full the claims of trust creditors who have lodged 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 Practiti oners’
Fidelity Fund;
5.9 subject to the approval of the chairman of the Legal
Practitioners’ Fidelity Fund Board of Control, to appoint
nominees or representatives and/or consult with and/or
engage the services of legal practitioners, counsel,
accountants and/or any other persons, where considered
necessary, to assist him in carrying out his duties as
curator; and
5.10 to render from time to time, as curator, returns to the Legal
Practitioners’ Fidelity Fund Board of Control showing how
the trust account(s) of the respondent has/have been dealt
with, until such time as the board notifies him that he may
regard his duties as curator as terminated.
6. That the respondent immediately delivers the accounting records,
records, files and documents containing p articulars and information
relating to:
6.1 any monies received, held or paid by the respondent for or
on account of any person while practising as a legal
practitioner;
6.2 any monies invested by the respondent in terms of section
86(3) and/or section 86(4) of Act No 28 of 2014;
6.3 any interest on monies so invested which was paid over or
credited to the respondent;
6.4 any estate of a deceased person or an insolvent estate or
an estate under curatorship administered by the
respondent, whether as executor or trustee or curator or on
behalf of the executor, trustee or 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;
6.6 any trust administered by the respondent as trustee or on
behalf of the trustee in terms of the Trust Properties
Control Act, No 57 of 1988;
6.7 any company liquidated in terms of the provisions of the
Companies Act, No 61 of 1973 read together with the
provisions of the Companies Act , No 71 of 2008,
administered by the respondent as or on behalf of the
liquidator;
6.8 any close corporation liquidated in terms of the Close
Corporations Act, 69 of 1984, administered by the
respondent as or on behalf of the liquidator; and
6.9 the resp ondent’s practice as a legal practitioner of this
Honourable Court, to the curator appointed in terms of
paragraph 5 hereof, provided that, as far as such
accounting records, records, files and documents are
concerned, the respondent shall be entitled to h ave
reasonable access to them but always subject to the
supervision of such curator or his nominee.
7. That should the respondent fail to comply with the provisions of the
preceding paragraph of this order on service thereof upon him or after
a return by the person entrusted with the service thereof that he has
been unable to effect service thereof on the respondent (as the case
may be), the Sheriff for the district in which such accounting records,
records, files and documents are, be empowered and directed to
search for and to take possession thereof wherever they may be and to
deliver them to such curator.
8. That the curator shall be entitled to:
8.1 hand over to the persons entitled thereto all such records,
files and documents provided tha t a satisfactory written
undertaking has been received from such persons to pay
any amount, either determined on taxation or by
agreement, in respect of fees and disbursements due to
the firm;
8.2 require from the persons referred to in paragraph 8.1 to
provide any such documentation or information which he
may consider relevant in respect of a claim or possible or
anticipated claim, against him and/or the respondent
and/or the respondent’s clients and/or fund in respect of
money and/or other property entr usted 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 wind-up of the respondent’s practice.
9. That the respondent be and is hereby removed from office as:
9.1 executor of any estate of which the respondent has been
appointed in terms of section 54(1)(a)(v) of the Administration of
Estates Act, No 66 of 1965 or the estate of any other person
referred to in section 72(1);
9.2 curator or guardian of any minor or other person’s property in
terms of section 72(1) read with section 54(1)(a)(v) and section
85 of the Administration of Estates Act, No 66 of 1965;
9.3 trustee of any insolvent estate in terms of section 59 of the
Insolvency Act, No 24 of 1936;
9.4 liquidator of any company in terms of section 379(2) read with
379(e) of the Companies Act, No 61 of 1973 and read together
with the provisions of the Companies Act, No 71 of 2008;
9.5 trustee of any trust in terms of section 20(1) of the Trust
Property Control Act, No 57 of 1988;
9.6 liquidator of any close corporation appointed in terms of section
74 of the Close Corporations Act, No 59 of 1984; and
9.7 administrator appointed in terms of section 74 of the Magistrates
Court Act, No 32 of 1944.
10. That the respondent be and is hereby directed:
10.1 to pay, in terms of section 87(2) of Act No 28 of 2014, the
reasonable costs of the inspection of the accounting records of
the respondent;
10.2 to pay the reasonable fees of the auditor engaged by applicant;
10.3 to pay the reasonable fees and expenses of the curator,
including travelling time;
10.4 to pay the reasonable fees and expenses of any person(s)
consulted and/or engaged by the curator as aforesaid;
10.5 to pay the expenses relating to the publication of this order or an
abbreviated version thereof; and
10.6 to pay the costs of this application on an attorney -and-client
scale and on scale C in terms of Rule 69(7) of the Uniform Rules
of Court.
11. 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, shall satisfy the
curator, by means of the submission of taxed bills of costs or otherwise, of the
amount of the fees and disbursements due to the respondent in respect of his
former practice, and should he fail to do so, h e 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.
12. That a certificate issued by a di rector of the Legal Practitioners’ Fidelity
Fund shall constitute prima facie proof of the curator’s costs and that the
Registrar be authorised to issue a writ of execution on the strength of such
certificate in order to collect the curator’s costs.
M J TEFFO
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
I agree:
___________________________
M MBONGWE
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Appearances
For the applicant J Moolman
Instructed by Damons Magardie Richardson Attorneys
For the respondent W B Ndlovu
Instructed by Peter Zwane Attorneys
Heard on 11 February 2025
Handed down on 30 September 2025