About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2015
>>
[2015] ZAWCHC 154
|
|
Cape Law Society v Dayimani (15271/2015) [2015] ZAWCHC 154 (8 October 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
CASE NUMBER:15271/2015
DATE: 8 OCTOBER 2015
In the matter between:
CAPE LAW
SOCIETY
.............................................................................................................
Applicant
And
MATTHEWS QALISILE
DAYIMANI
...............................................................................
Respondent
J U D G M E N T
BINNS-WARD, J:
In this matter the Cape Law Society has
applied for an order interdicting the respondent attorney from
practicing as such pending
the decision of the Court in an
application which it indicates it will institute for the removal of
the respondent’s name
from the roll of attorneys. The
application for interim interdictory relief was brought in terms of
Rule 6(12) on two weeks’
notice to the respondent, and set down
for hearing in the Third Division on Thursday, 3 September 2015.
On that date the respondent was
represented by counsel and applied for an adjournment of the
proceedings in order to file further
papers in response to what was
contended to be new matter in the applicant’s replying papers.
Notwithstanding the applicant’s
opposition to the application
for postponement, an order was made by Weinkove, AJ, on 3 September
2015, affording the respondent
until 10 September to deliver his
further affidavits and directing that arrangements thereafter be made
through the office of the
Judge President for the set down of the
matter for hearing on a preferential basis.
The respondent did not comply with the
time provisions laid down in the order made by Weinkove, AJ and
delivered his further affidavit
only on 16 September 2015. There has
been no application for the condonation of the non-compliance with
the terms of the order
made by Weinkove, AJ. In addition, the
respondent applied on 16 September 2015 to take the order made by Mr
Acting Justice Weinkove
under judicial review. An application for
leave to appeal against Weinkove, AJ’s judgment was also
delivered.
Obviously, the application to review
the proceedings before Mr Acting Justice Weinkove was misdirected and
entirely incompetent;
and, unsurprisingly, a notice of withdrawal of
those proceedings with a tender to pay the wasted costs has since
been forthcoming.
The fate of the application for leave to appeal
against the judgment is unknown, but it is clear that the matter is
in any event
not appealable. It is curious indeed that either of the
aforementioned applications was brought in view of the fact that
Weinkove,
AJ, in essence, granted the respondent what he sought on 3
September 2015.
Proceedings were set down for hearing
in the Fourth Division on the direction of the Judge President, given
on 17 September 2015.
Notice of set down was served on the
respondent by email on 18 September 2015. There was no communication
between the respondent
and the applicant, I am advised, between 17
September and today’s date, 8 October 2015, when, immediately
prior to the commencement
of the hearing, so I am informed, the
respondent, who appeared in person today, advised the applicant’s
attorney of his intention
to apply for a postponement.
The application for postponement was
moved orally by the respondent without papers. The reason offered in
support of the application
for postponement was the respondent’s
wish to continue to be represented by Mr Hinana, an advocate from
Mmtata, who had,
as mentioned, appeared for him previously. It would
appear from what the respondent said in support of his application
for postponement
this morning that certain financial difficulties had
prevented him from being able to secure the services of Mr Hinana to
appear
today.
The application for postponement was
opposed by the Law Society and, in his address in support of the
applicant’s opposition
to a further postponement of the matter,
Mr Bean referred not only to the history of the matter since the
institution of the current
proceedings for interim relief, but also
to the history of the respondent’s interactions with the Law
Society in the forerunning
to the institution of the proceedings. He
illustrated examples of the respondent’s failure on repeated
occasions to respond
timeously, or at all, to correspondence directed
to him by the Law Society in connection with the matters which form
the basis
of the complaint on which the Law Society primarily relies
in the current proceedings.
To seek a postponement of proceedings
is to seek an indulgence. It is not necessary to rehearse the
principles authoritatively
set out in judgments like Myburgh
Transport v Botha t/a SA Truck Bodies
1991 (3) SA 310
(NmS), but it
is well established that a balancing of interests is involved in the
determination of the question. Certainly, the
history of the current
matter, as I have outlined it, is a matter which weighed against the
grant of a postponement.
I had, nevertheless, also to consider
the potential prejudice to the respondent in not being legally
represented. In that regard
I considered that any such prejudice was
materially mitigated by the fact that Mr Hinana had prepared heads of
argument dealing
with the merits in the matter prior to the hearing
on 3 September 2015 and the respondent was able to hand those in. I
would imagine
that the submissions contained therein would be
persisted in by Mr Hinana were a postponement to be granted to enable
him to appear.
It did not seem to me that the issues canvassed in
the additional sets of affidavits exchanged after 3 September were of
a nature
that would bear on the result of this application and
accordingly I did not consider the prejudice in Mr Hinana not being
able
to address those matters to be material.
In weighing whether a postponement
should be granted or not, I also gave some consideration to the
apparent merits of the matter
with a view to considering whether
there were issues that were sufficiently arguable to merit a further
delay to enable the respondent
to obtain legal representation. In
that regard it was striking that the answering papers and the
preceding correspondence concerning
the matter from the respondent
gave no answer to the principal complaint brought against him, which,
as currently advised, will
be the bedrock of the contemplated
proceedings for his removal from the roll of attorneys: That is the
apparent use by him of
funds, amounting to nearly R270 000.00, paid
to him by the Road Accident Fund in settlement of a claim by one of
his clients, Ms
Memani, in May 2009. In the absence of any cogent
explanation for that amount not having been retained in his trust
account between
28 May 2009 and September or October 2013, when an
amount of R200 000.00 was paid to Ms Memani - the balance allegedly
having been
retained on account of fees - led me to conclude that
there was really nothing effective that could be said on the
respondent’s
behalf on the papers by a legal representative,
were one to be appointed.
A further factor, of course, was that
Mr Dayimani, the respondent, is himself legally qualified and able,
better than the average
lay person, to represent himself. For those
reasons, the application for a postponement was refused.
Proceedings of this nature, being an
element of disciplinary proceedings against the respondent, are sui
generis, and not like ordinary
civil litigation. For that reason,
none of the points taken by the respondent in opposing the
application bore with particular
relevance on the matter in hand.
In his answering papers he sought the
striking of the matter from the roll on the basis of a lack of
urgency. There is no doubt
that the current proceedings could, and
should, have been instituted with far greater expedition by the Law
Society, but apparent
misconduct of the nature involved in this case
and which, as I have said, has not been answered by the respondent at
this stage,
poses an on-going danger to the integrity of the
profession and gives undue exposure to harm to members of the public
liable to
deal with the respondent.
The concern in that regard is
exacerbated by the information apparent from the auditors’
statement attached to the respondent’s
own second answering
affidavit, which shows that in respect of the latest financial year
substantial shortfalls have been reflected
in the respondent
attorney’s trust account. These considerations, in themselves,
make the matter urgent, notwithstanding
the criticism that can be
levied at the Law Society in taking so long to bring the proceedings.
The respondent also took the point that
there had been a failure to exhaust internal remedies. Now, that is
the sort of defence
that is ordinarily raised in a judicial review
context. It has no role in proceedings of this nature. There is no
obligation
on the Law Society or a similar professional body to go
through an internal disciplinary process before instituting
proceedings
for relief of the nature sought in the current matter.
The appropriateness of proceeding in
the manner that the Law Society did in the current case depends on
the facts of the case.
And, in a matter in which is apparent that a
substantial sum of money has been misappropriated from a trust
account and no cogent
answer or explanation for the situation has
been offered, the Law Society cannot be criticised for proceeding as
it has done.
In my view, the general principles
applicable to interim interdicts are not entirely transposable to
proceedings of this nature
because of their sui generis character.
In bringing proceedings of this nature the Law Society is not
exercising or protecting
a right; and it has no apprehension of harm
for itself. It is, as the cases, to which it is not necessary to
refer individually,
have repeatedly confirmed, acting virtually in a
pro bono capacity for the benefit of society at large and to uphold
the integrity
of the particular branch of the legal profession and
the administration of justice as a whole.
The pertinent criterion in determining
a case of this nature, in my view, is the apparent prospects of
success in the principal
case. If it appears prima facie that an
attorney has made himself guilty of misconduct which would lead to
his removal from the
roll and is practicing in circumstances where
the public at large is at risk of becoming the victim of similar
misconduct, interim
relief of this nature is indicated. The findings
of the court in granting it are, of course, entirely provisional and
do not pre-empt
the result of the principal proceedings. But, on the
facts adduced on the papers before the court at this stage, there is,
as
I have said, an un-rebutted indication of the misappropriation of
funds from the respondent’s trust account in a significant
amount and an indication in the subsequent auditor’s reports
that I have referred to that the problem is not confined to
the
particular matter which gave rise to the Law Society’s
investigation. It is not desirable in interim proceedings for
me to
express myself in any greater detail or any more definitively in
respect of the issues involved, lest that be prejudicial
to the
respondent in the principal proceedings.
The notice of motion sought interim
relief pending the institution of proceedings at a later stage; that
later stage not being in
any way defined. In my view that is
unreasonable and unacceptable. It is desirable in matters like this,
where an interim order
will have a materially intrusive effect on the
respondent’s ability to earn a living in the profession to
which he has been
admitted, and remains admitted, for the suspension
of his activities not to be unduly prolonged. I have referred
earlier to my
concerns about the delays that have characterised this
matter on the part of the Law Society, and it is important that they
not
be permitted to be perpetuated. The order that will be made will
therefore provide that the principal proceedings must be instituted
before 30 January 2016. I would have thought that quite a prolonged
period, but Mr Bean explained to me that in the nature of
these
matters, the founding papers in the principal proceedings are, as a
matter of course, prepared by the Law Society with regard
to the
findings of the curator put in charge of the respondent’s
practice during the period of the operation of the interim
order.
IN THE CIRCUMSTANCES AN ORDER WILL
ISSUE IN TERMS OF PARAGRAPH 2 OF THE NOTICE OF MOTION INCORPORATING
SUBPARAGRAPHS 2(1) TO 2(10)
PROVIDED THAT THE INTRODUCTION TO
PARAGRAPH 2 SHALL BE READ AS IF PROVIDING AS FOLLOWS:
“THAT PENDING THE DECISION OF
THIS HONOURABLE COURT IN AN APPLICATION TO BE INSTITUTED AGAINST THE
RESPONDENT BY THE APPLICANT
BEFORE 31 JANUARY 2016 FOR THE STRIKING
OFF OF THE RESPONDENT’S NAME FROM THE ROLL OF ATTORNEYS’
OF THIS HONOURABLE
COURT:”
THE RELIEF SOUGHT IN TERMS OF
PARAGRAPHS 2.11.1, 2.11.2 AND 2.11.3 OF THE NOTICE OF MOTION SHALL
STAND OVER FOR DETERMINATION IN
THE PROCEEDINGS TO BE INSTITUTED FOR
THE STRIKING OFF OF THE RESPONDENT.
AN ORDER IS MADE IN TERMS OF PARAGRAPH
2.11.4 OF THE NOTICE OF MOTION AND IN TERMS OF PARAGRAPHS 3 AND 4
THEREOF.
BINNS-WARD, J