Case Number: UM 148/2018 In the matter between
Transcript of Case Number: UM 148/2018 In the matter between
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IN THE NORTH WEST HIGH COURT, MAHIKENG
Case Number: UM 148/2018
In the matter between:
THE LEGAL PRACTICE COUNCIL Applicant
and
FELICITY BOITUMELO PORTIA MOTLHABANI Respondent
HENDRICKS DJP & NONYANE AJ
DATE OF HEARING : 25 MARCH 2020
DATE OF JUDGMENT : 07 MAY 2020
COUNSEL FOR APPLICANT : ADV. JOOSTE
COUNSEL FOR RESPONDENT : ADV. MASIKE
Reportable: YES/NO
Circulate to Judges: YES/NO
Circulate to Magistrates: YES/NO
Circulate to Regional Magistrates: YES/NO
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ORDER
Consequently, the following order is made:
1. The application to compel is dismissed with costs on an
attorney and client scale.
2. The review application is dismissed with costs on an attorney
and client scale.
3. That the name of FELICITY BOITUMELO PORTIA
MOTLHABANI (the respondent) be removed from the roll of
attorneys.
4. That respondent immediately surrenders and delivers to the
registrar of this Court her certificate of enrolment as an
attorney.
5. That in the event of the respondent failing to comply with the
terms of this order in paragraph 4 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 certificates and to hand them to the Registrar of this
Court.
6. That respondent be prohibited from handling or operating on
her trust accounts.
7. That Johan van Staden, the head legal practitioner's affairs 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
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insolvent and deceased estates and any deceased estate and
any estate under curatorship connected with respondent's
practice as an attorney 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 78(1) of Act
No 53 of 1979 and/or any separate savings or interest-bearing
accounts as contemplated by section 78(2) and/or section 78
(2A) of Act No. 53 of 1979, 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:
7.1 immediately to take possession of respondent's
accounting records, records, files and documents and
subject to the approval of the board of control of the
Attorney’s Fidelity Fund (hereinafter referred to as the
fund) to sign all forms and generally to operate upon the
trust accounts, but only to such extent and for such
purpose as may be necessary to bring to completion
current transactions in which respondent was acting at
the date of this order;
7.2 subject to the approval and control of the board of
control of the fund and where monies had been paid
incorrectly and unlawfully from the undermentioned
trust accounts, to recover and receive and, if necessary,
in the interests of persons having lawful claims upon the
trust accounts and/or against respondent in respect of
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monies held, received and/or invested by respondent in
terms of section 78(1) and/or section 78(2) and/or
section 78 (2A) of Act No 53 of 1979 (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 respondent was and may
still have been concerned and to receive such monies
and to pay the same to the credit of the trust accounts;
7.3 to ascertain from respondent's accounting records the
names of all persons on whose account respondent
appears to hold or to have received trust monies
(hereinafter referred to as trust creditors), to call upon
respondent to furnish him/her, within 30 (thirty) days of
the date of service of this order or such further period as
he/she may agree to in writing, with the names,
addresses and amounts due to all trust creditors;
7.4 to call upon such trust creditors to furnish such proof,
information and/or affidavits as he/she may require to
enable him/her, acting in consultation with and subject
to the requirements of the board of control of the fund,
to determine whether any such trust creditor has a claim
in respect of monies in the trust accounts of respondent
and, if so, the amount of such claim;
7.5 to admit or reject, in whole or in part, subject to the
approval of the board of control of the fund, the claims
of any such trust creditor or creditors, without
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prejudice to such trust creditor's or creditors' right of
access to the civil courts;
7.6 having determined the amounts which, he/she
considers are lawfully due to trust creditors, to pay
such claims in full but subject always to the approval of
the board of control of the fund;
7.7 in the event of there being any surplus in the trust
accounts of 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 78(3) of Act No
53 of 1979 in respect of any interest therein referred to
and secondly, without prejudice to the rights of the
creditors of respondent, the costs, fees and expenses
or such portion thereof as has not already been
separately paid by respondent to applicant. If there is
any balance left after payment in full of all such claims,
costs, fees and expenses, to pay such balance, subject
to the approval of the board of control of the fund, to
respondent, if she is solvent, or, if respondent is
insolvent, to the trustee(s) of respondent's insolvent
estate;
7.8 in the event of there being insufficient trust monies in
the trust banking accounts of the respondent, in
accordance with the available documentation and
information, to pay in full the claims of trust creditors
who have lodged claims for repayment and whose
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claims have been approved, to distribute the credit
balance(s) which may be available in the trust banking
accounts amongst the trust creditors alternatively to
pay the balance to the Legal Practitioner's Fidelity
Fund;
7.9 subject to the approval of the chairman of the board of
control of the fund, to appoint nominees or
representatives and/or consult with and/or engage the
services of attorneys, counsel, accountants and/or any
other persons, where considered necessary, to assist
him/her in carrying out his/her duties as curator; and
7.10 to render from time to time, as curator, returns to the
board of control of the fund showing how the trust
accounts of respondent have been dealt with, until
such time as the board notifies him/her that he/she may
regard his/her duties as curator terminated.
8. That respondent immediately delivers her accounting records,
records, files and documents containing particulars and
information relating to:
8.1 any monies received, held or paid by respondent for or
on account of any person while practising as an
attorney;
8.2 any monies invested by respondent in terms of section
78(2) and/or section 78 (2A) of Act No 53 of 1979;
8.3 any interest on monies so invested which was paid
over or credited to respondent;
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8.4 any estate of a deceased person or an insolvent estate
or an estate under curatorship administered by
respondent, whether as executor or trustee or curator
or on behalf of the executor, trustee or curator;
8.5 any insolvent estate administered by respondent as
trustee or on behalf of the trustee in terms of the
Insolvency Act, No 24 of 1936;
8.6 any trust administered by respondent as trustee or on
behalf of the trustee in terms of the Trust Properties
Control Act, No 57 of 1988;
8.7 any company liquidated in terms of the Companies Act,
No 61 of 1973, administered by respondent as or on
behalf of the liquidator;
8.8 any close corporation liquidated in terms of the Close
Corporations Act, 69 of 1984, administered by
respondent as or on behalf of the liquidator, and
8.9 respondent's practice as an attorney of this Court, to
the curator appointed in terms of paragraph 7 hereof,
provided that, as far as such accounting records,
records, files and documents are concerned,
respondent shall be entitled to have reasonable access
to them but always subject to the supervision of such
curator or his nominee.
9. That should respondent fail to comply with the provisions of
the preceding paragraph of this order upon service thereof
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upon her or after a return by the person entrusted with the
service thereof that he/she has been unable to effect service
thereof on respondent (as the case may be), the Sheriff for the
district in which such accounting records, records, files and
documents are, be empowered and directed to search for and
to take possession thereof, wherever they may be and to
deliver them to such curator.
10. That the curator shall be entitled to:
10.1 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;
10.2 require from the persons referred to in paragraph 8.1 to
provide any such documentation or information which
he/she may consider relevant in respect of a claim or
possible or anticipated claim, against him/her and/or
respondent and/or respondent's clients and/or fund in
respect of money and/or other property entrusted to
respondent provided that any person entitled thereto
shall be granted reasonable access thereto and shall be
permitted to make copies thereof;
10.3 publish this order or an abridged version thereof in any
newspaper he/she considers appropriate; and
10.4 wind-up of the respondent's practice.
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11. That respondent be and is hereby removed from office as –
11.1 executor of any estate of which respondent has been
appointed in terms of section 54(1)(a)(v) of the
Administration of Estates Act, No 66 of 1965 or the
estate of any other person referred to in section 72(1);
11.2 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;
11.3 trustee of any insolvent estate in terms of section 59 of
the Insolvency Act, No 24 of 1936;
11.4 liquidator of any company in terms of section 379(2)
read with section 379(e) of the Companies Act, No 61 of
1973;
11.5 trustee of any trust in terms of section 20(1) of the Trust
Property Control Act, No 57 of 1988;
11.6 liquidator of any close corporation appointed in terms of
section 74 of the Close Corporation Act, No 69 of 1984;
and
11.7 administrator appointed in terms of Section 74 of the
Magistrates Court Act, No 32 of 1944.
12. That respondent be and is hereby directed:
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12.1 to pay, in terms of section 78(5) of Act No 53 of 1979, the
reasonable costs of the inspection of the accounting
records of respondent;
12.2 to pay the reasonable fees of the auditor engaged by
applicant;
12.3 to pay the reasonable fees and expenses of the curator,
including travelling time;
12.4 to pay the reasonable fees and expenses of any
person(s) consulted and/or engaged by the curator as
aforesaid;
12.5 to pay the expenses relating to the publication of this
order or an abbreviated version thereof; and
12.6 to pay the costs of this application on an attorney-and-
client scale.
13. That if there are any trust funds available, the respondent shall
within 6 (six) months after having been requested to do so by
the curator, or within such longer period as the curator may
agree to in writing, satisfy the curator, by means of the
submission of taxed bills of costs or otherwise, of the amount
of the fees and disbursements due to her (respondent) in
respect of her former practice, and should she fail to do so,
she shall not be entitled to recover such fees and
disbursements from the curator without prejudice, however, to
such rights (if any) as she may have against the trust
creditor(s) concerned for payment or recovery thereof,
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14. That a certificate issued by a director of the Legal Practitioner's
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.
JUDGMENT
HENDRICKS DJP
Introduction
[1] This is an application consisting of two parts brought by the
applicant against the respondent. The Legal Practice Council
[“LPC”], (applicant) formerly known as The Law Society of the
Northern Provinces, received complaints relating to the conduct of
the respondent as an attorney. The applicant investigated the
complaints. It was decided/resolved to apply to this Court for the
suspension (Part A) and ultimately the removal /striking off of the
name of the respondent from the roll of attorneys (Part B).
See: Law Society, Northern Provinces v Mogami and Others
2010 (1) SA 186 (SCA).
[2] The application was lodged with the Registrar of this Court on 27
September 2018 and set down for the hearing of Part A thereof on
19 October 2018. On 19 October 2018 Gutta J and Matlapeng AJ
granted an order suspending the respondent from practicing as an
attorney and ancillary relief (Part A). The matter was again on the
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roll for 12 December 2018 but was removed from the roll as per a
notice of removal filed. It was re-enrolled for 15 November 2019.
On 15 November 2019 this Court granted a postponement, as
requested by the respondent, to 25 March 2020 and set time
frames in order to case manage the matter to be trial ready.
[3] It was inter alia ordered that the respondent should file her
answering affidavit in the removal/striking off application within ten
(10) days from the date of the order. To serve and file the
application to compel also within ten (10) days from the date of the
order. The applicant to file and serve its answering affidavit to the
application to compel within ten (10) days from date of receipt of
the application to compel, if any, and the respondent to file her
replying affidavit within ten (10) days of receipt of the answering
affidavit. The application to compel, the review application and the
removal/striking off application be set down for hearing on 25
March 2020. The interlocutory application to compel compliance
with the request for the filing of a record in the review application
was subsequently filed by the respondent. The applicant in reply
thereto filed and served an answering affidavit in the review
application and a Rule 6 (5) (d) (iii) notice.
[4] On 25 March 2020 these applications served before this Court.
The respondent has failed to file an answering affidavit in the
removal/striking off application. At the commencement of the
hearing of these applications, Adv. Masike appearing on behalf of
the respondent, informed the Court that although he is on brief in
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this matter, he holds no further instructions. The respondent
informed her instructing attorney that she is tired of this matter.
This was told to Adv. Masike who conveyed it to this Court. The
matter was therefore unopposed. After listening to the submissions
by Adv. Jooste on behalf of the applicant, the prayers contained
in paragraphs (1) and (2) of the aforementioned order were
granted. Judgment in respect of the removal/striking off application
was reserved.
Background facts
[5] Felicity Boitumelo Portia Motlhabani (respondent) was admitted
as an attorney on 16 June 2004. She practice as such under the
name and style of Motlhabani Attorneys & Administrators of
Estates, in Mahikeng (the firm). The Legal Practice Council [LPC]
(applicant) received complaints against the respondent. The
complaints relate inter alia to the misappropriation of trust funds;
failure to account to clients; and the overcharging of clients. The
applicant instructed a Chartered Accountant, Mr. Reddy (Reddy),
to conduct an inspection of the accounting records and the affairs
of the firm and to investigate the complaints.
Complaint by Ms. K.P. Kgosiemang
[6] The applicant received a complaint from Ms. Kgosiemang on 22
June 2016 in which she alleges that the firm owes her an amount
of R464 312.00 since 13 January 2016. She states that she only
received and amount of R150 000.00. This complaint was
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investigated by Reddy. An amount of R6 500 000.00 was received
on behalf of Ms Kgosiemang from the Department of Health and
deposited into the firm’s trust account over the period 25
November 2014 to 24 February 2015. The firm’s ledger reflects
numerous electronic fund transfers to the firm’s business bank
account, as well as cheque payments over the period 30
November 2014 to 31 December 2015. Payments on the ledger
account did not relate to Ms. Kgosiemang. Several cheques as
reflected on the trust ledger account of Kgosiemang does not
indicate that Kgosiemang is the beneficiary. Instead, there are
several other beneficiaries.
[7] Reddy discussed this issue with the respondent who confirmed
that the payments relate to other clients. She could not explain
why these payments were allocated to the trust creditor account of
Ms. Kgosiemang. The effect thereof is that the trust creditor
balance of Ms. Kgosiemang’s account is understated in the
accounting records. It was established that R1 500 000.00 of the
R6 500 000.00 received, was paid to Ms. Kgosiemang. Payments
to Ms Kgosiemang were also delayed. As an explanation why
payments were delayed, the respondent stated that it was as a
result of the bill of costs not being drafted. This was not correct as
the bill of costs was taxed on 18 September 2015. The real reason
according to Reddy was because monies were not available in the
firm’s trust banking accounts.
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[8] Furthermore it was also established that the statement of account
of Ms. Kgosiemang was incorrect. In terms of the fee agreement
entered into between the firm and Ms. Kgosiemang, the fee would
be limited to an amount of R1 345 946.66. However, the statement
of account reflected an amount of R1 625 000.00, meaning that
Ms. Kgosiemang was overcharged with an amount of R
279 053.34. Ms. Kgosiemang was also not paid in full as submitted
by the respondent to Reddy. Instead, Reddy found that the ledger
account of Ms Kgosiemang proves that the respondent, as the only
person who handled fees and payments of the firm whether by
cheque or electronic fund transfers, was rolling trust monies due to
the existence of a trust deficit.
[9] Reddy concluded that the respondent’s accounting records are
either inaccurately prepared or intentionally manipulated in order to
understate the firm’s trust creditors. The firm’s accounting records
are unreliable and does not reflect the actual trust creditor balance.
Based on the information established with regard to the
investigation of the complaint of Ms. Kgosiemang, there is at least
a trust deficit of R2 728 726.63. Ms. Kgosiemang was still owed an
amount in excess of R 3 000 000.00.
[10] Various rules of the Attorney’s Profession were breached by the
respondent. These rules relate thereto that the firm’s accounting
records were not updated on a monthly basis (Rule 35.9); a failure
to ensure that the total amount of money in the firm’s trust account,
trust investment account and trust cash at any date shall not be
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less than the total amount of the credit balances of the trust
creditors shown in its accounting records (Rule 69.3.1 alternatively
Rule 35.13.8); a failure to maintain accounting records that fully
and accurately reflect the state of affairs and business of the firm
(Rule 68.1); a failure to pay an amount due to a client within a
reasonable time (Rule 68.8); and the respondent overcharged a
client (Rule 89.24).
Complaint by Ms. E. Ramaisa
[11] Ms. E. Ramaisa filed a complaint with the applicant against the
respondent on 24 April 2017. Ramaisa alleges that she instructed
the respondent to institute a claim for medical negligence against
the Member of the Executive Council (MEC) responsible for Health
in the North West Province. The matter became settled. The
settlement amount was R8 000 000.00. This amount was paid into
the respondent firm’s trust account on 30 March 2016. Upon
enquiry, the respondent informed Ms. Ramaisa only during
September 2016 that the money was paid and that a trust needed
to be established. The respondent further informed Ms. Ramaisa
that she is utilising some of the monies to build a house for Ms.
Ramaisa. According to the respondent, the contractor is still busy
building the house for Ms. Ramaisa. The building was delayed as
a result of difficult weather conditions.
[12] The respondent stated that she is struggling to find trustees to set
up security and to establish a trust. That is why a trust was not yet
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established. She also assists Ms. Ramaisa and her family with the
reasonable monthly expenses but the Ramaisa family wants
exorbitant amounts of money for groceries and other daily living
expenses. This is for the Ramaisa family’s benefit and not for the
benefit of the child on whose behalf the claim was made.
[13] In response hereto, Ms. Ramaisa states that the respondent only
bought building material for the house after she lodged the
complaint. Furthermore, it was not ordered by the court that a
house be built for them. No actual report was made to her by the
respondent about the monies received and the respondent
therefore failed to communicate effectively with her.
[14] Reddy found that the respondent disregarded the instructions of
her client; that there is a trust deficit in the trust accounts; and the
respondent’s conduct illustrates a disregard in respect of the
essence of trust funds. The trust deficit is in breach of Rule
35.13.8. Failure to keep proper accounting records in breach of
Rule 35.13.1 and Rule 36.7. Failure to account to her client in
breach of Rule 35.11 and Rule 49.13. The delay in payments of
trust funds to the client is in breach of Rule 35.12.
[15] As a result of the complaints received, as well as on the strength of
the report submitted by Reddy, the applicant resolved that the
respondent behaved in an unprofessional, dishonourable and
unworthy fashion. Furthermore, that she is no longer a fit and
proper person to continue to practice as an attorney. Her conduct
does not meet the standard of behaviour and reputation which is
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required of an attorney and officer of this Court. She had damaged
the reputation of the attorney’s profession and her name should
therefore be removed from the roll of attorneys.
[16] The applicant lodged the application as aforementioned in two
parts with the Registrar of this Court. Part A was for the
suspension of the respondent from practice as an attorney and
Part B for the removal/striking off of her name from the roll of
attorneys. In Law Society, Northern Provinces v Mogami and
Others, supra, the following is stated:
“[2] The relief sought in part A of the notice of motion was granted
by Hendricks J, but the full bench (Monama AJ in a judgment
concurred in by Gura J), when dealing with part B, refused to
take any punitive action against the respondents; permitted
them to recommence their practice; and ordered the parties to
pay their own costs. The appeal is against this judgment. As a
result of the interim order the respondents were effectively
suspended from practising for a period of about ten months.
and
[4] Applications for the suspension or removal from the roll require
a three-stage enquiry. First, the court must decide whether the
alleged offending conduct has been established on a
preponderance of probabilities, which is a factual inquiry.
Second, it must consider whether the person concerned is 'in
the discretion of the court' not 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. And third, the court must
enquire whether in all the circumstances the person in question
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is to be removed from the roll of attorneys or whether an order
of suspension from practice would suffice (Jasat v Natal Law
Society 2000 (3) SA 44 (SCA) ([2000] 2 All SA 310); Malan and
Another v Law Society, Northern Provinces 2009 (1) SA 216
(SCA) ([2009] 1 All SA 133; [2008] ZASCA 90) at para 10).”
[17] As alluded to earlier, this Court per Gutta J et Matlapeng A.J
granted an order in terms of Part A, suspending the respondent
from practice as an attorney on 19 October 2018, together with
ancillary relief.
The application for review of the decision of the LPC.
[18] The respondent launched a review application for the reviewing
and setting aside of the decision/resolution of the applicant taken
on 31 August 2018 to apply for her removal/striking off the roll
without referring her alleged acts of misconduct to a disciplinary
enquiry in terms of the Promotion of Administrative Justice Act 3 of
2000 (PAJA) and/or the principle of legality. Furthermore, that the
striking off the roll of attorneys proceedings be stayed pending the
investigation and conducting of a disciplinary enquiry and the
finalization thereof. The record of the decision/resolution taken on
31 August 2018 by the applicant be supplied to her and filed with
the Registrar of this Court.
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[19] This application for review is opposed by the applicant. Firstly, on
the basis of section 72 (6) of the Attorney’s Act 53 of 1979, which
states;
“the provisions of the section shall not affect the power of -
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(a) a society to apply in terms of the provisions of this Act for the
suspension from practice or the striking of from the roll of
any practitioner whom an enquiry is being or has been
conducted in terms of this Act in respect of the conduct
which forms or formed the subject matter of the enquiry:
(b) a competent court, at the instance of the society concerned
to suspend any practitioner from practice or to strike him
from the roll.”
(Emphasis added)
By virtue of the fact that this application was launched before the
Legal Practice Act 28 of 2014 came into effect on 01 November
2018, it has to be determined in terms of the provisions of the
Attorney’s Act 53 of 1979 (the Attorney’s Act) and its regulations.
[20] In terms of section 72 (6) of the Attorney’s Act, the applicant was
entitled to apply to court for the suspension and removal/striking
off of the roll of attorneys of the respondent, without at first calling
her for a disciplinary hearing in terms of section 71 and 72 of the
Act. The applicant derives its power and authority as the custos
morum of the profession from the Attorney’s Act. The ultimate
decision to evaluate the conduct of the respondent and to
determine whether she is a fit and proper person to continue to
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practice as an attorney lies with the Court, in terms of section 22
(1)(d) of the Attorney’s Act.
[21] Section 22 (1) (d) of the Attorney’s Act provides:
“Any person who has been admitted and enrolled as an attorney may on
application by the society concerned be struck off the roll or suspended
from practice by the court within the jurisdiction of which he practises . . . if
he, in the discretion of the court, is not a fit and proper person to continue
to practise as an attorney.”
In Botha v Law Society, Northern Provinces 2009 (1) SA 227
(SCA) the following is stated:
“[2] … “As was said in Jasat v Natal Law Society and repeated
most recently in Malan and Another v Law Society, Northern
Provinces, the section contemplates a three-stage inquiry:
First, the court must decide whether the alleged offending
conduct has been established on a preponderance of
probabilities, which is a factual inquiry. Second, the court must
consider whether the person concerned 'in the discretion of
the court' is not 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. Third, the court must inquire
whether in all the circumstances the attorney is to be removed
from the roll of attorneys or whether an order of suspension
from practice would suffice.
[3] The appeal was directed at the sanction imposed by the court a
quo. The decision whether an attorney who has been found
unfit to practise as such should be struck off or suspended is a
matter for the discretion of the court of first instance. That
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discretion is an example of a 'narrow' discretion. The
consequence is that an appeal court will not decide the matter
afresh and substitute its decision for that of the court of first
instance; it will do so only where the court of first instance did
not exercise its discretion judicially, which can be done by
showing that the court of first instance exercised the power
conferred on it capriciously or upon a wrong principle, or did not
bring its unbiased judgment to bear on the question or did not
act for substantial reasons, or materially misdirected itself in fact
or in law. It must be emphasised that dishonesty is not a sine
qua non for striking-off. As Harms JA said in Malan:
Obviously, if a court finds dishonesty, the circumstances
must be exceptional before a court will order a
suspension instead of a removal . . . Where dishonesty
has not been established the position is . . . that a court
has to exercise a discretion within the parameters of the
facts of the case without any preordained limitations.”
[22] Secondly, the respondent contended that the Promotion of Access
to Justice Act (PAJA) finds application and that the review is in
terms of the grounds stipulated in section 6 of PAJA. It was alleged
that the decision/resolution taken by the applicant amounts to
administrative action.
[23] The applicant contended that it did not take a decision to discipline
the respondent. The applicant took a decision to bring the conduct
of the respondent under the attention of the Court, so that the
Court can make a decision whether or not to discipline the
respondent, as one of its officers.
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[24] The respondent need not even bring a review of the
decision/resolution by the applicant. It was incumbent upon the
respondent to file an answering affidavit in which she should
answer to, or dispel any of the allegations of misconduct or
complaints levelled against her. This she failed to do. Instead, she
decided to review the decision/resolution of the applicant to launch
this application. To this end, she also filed an application to compel
compliance with the request for the record of the
decision/resolution taken by the applicant. This was countered by
the filing of a notice in terms of Rule 6 (5) (d) (iii). The applicant
allege that the application to compel as well as the review
application are fatally flawed. No case is made out and no
evidence presented that the decision by the applicant constitutes
administrative action as defined in section 1 of PAJA.
[25] The suspension and removal/striking off application constituted sui
generis disciplinary proceedings which becomes the Court’s
proceedings. These proceedings are merely referred by the
applicant to the Court. When the applicant exercises its discretion
to refer the alleged offending conduct to the Court for the Court to
make a decision on whether the practitioner should be suspended
and or removed/strike off as not being a fit and proper person to
continue to practice as an attorney, the exercising of such
discretion does not constitute a decision within the ambit of
administrative action as defined in section 1 of PAJA.
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[26] Administrative action is defined as follows in PAJA:
“‘administrative action’ means any decision taken, or any failure
to take a decision, by-
(a) an organ of state, when-
(i) exercising a power in terms of the Constitution or a
provincial constitution; or
(ii) exercising a public power or performing a public function in
terms of any legislation; or
(b) a natural or juristic person, other than an organ of state, when
exercising a public power or performing a public function in terms
of an empowering provision,
which adversely affects the rights of any person and which has
a direct, external legal effect, but does not include-
(aa) the executive powers or functions of the National Executive,
including the powers or functions referred to in sections 79 (1)
and (4), 84 (2) (a) , (b) , (c) , (d) , (f) , (g) , (h) , (I) and (k) , 85
(2) (b) , (c) , (d) and (e) , 91 (2), (3), (4) and (5), 92 (3), 93, 97,
98, 99 and 100 of the Constitution;
(bb) the executive powers or functions of the Provincial Executive,
including the powers or functions referred to in sections 121 (1)
and (2), 125 (2) (d) , (e) and (f) , 126, 127 (2), 132 (2), 133 (3)
(b) 137, 138, 139 and 145 (1) of the Constitution;
(cc) the executive powers or functions of a municipal council;
(dd) the legislative functions of Parliament, a provincial legislature
or a municipal council;
(ee) the judicial functions of a judicial officer of a court referred to in
section 166 of the Constitution or of a Special Tribunal
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established under section 2 of the Special Investigating Units
and Special Tribunals Act, .1996 ( Act 74 of 1996 ), and the
judicial functions of a traditional leader under customary law or
any other law;
(ff) a decision to institute or continue a prosecution;
(gg) a decision relating to any aspect regarding the nomination,
selection or appointment of a judicial officer or any other
person, by the Judicial Service Commission in terms of any
law;
[Para. (gg) substituted by s. 26 of Act 55 of 2003.]
(hh) any decision taken, or failure to take a decision, in terms of an
provision of the Promotion of Access to Information Act, 2000;
or
(ii) any decision taken, or failure to take a decision, in terms of
section 4 (1);”
(Emphasis added)
[27] The exercising of the applicant’s discretion to refer the offending
conduct to this Court comes at the instance where the applicant is
of the view that the conduct is so serious that it warrants a decision
by the Court. The offending conduct must therefore be brought
before the Court for the Court to decide whether or not the
respondent is fit and proper to remain on the roll of attorneys.
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[28] In Malan and Another v Law Society, Northern Province 2009
(1) SA 216 (SCA) the following is stated:
“[3] Although the principles applicable to striking-off applications
have often been stated, it is necessary to restate them once
more to emphasise aspects that tend to be ignored or
misunderstood. The Society launched its application under s
22(1)(d) of the Attorneys Act 53 of 1979, which provides that
'(a)ny person who has been admitted and enrolled as an
attorney may on application by the society concerned be struck
off the roll or suspended from practice by the court if he, in the
discretion of the court, is not a fit and proper person to continue
to practise as an attorney'.
[4] As was said in Jasat v Natal Law Society 2000 (3) SA 44
(SCA) ([2000] 2 All SA 310) at para 10, s 22(1)(d) contemplates
a three-stage inquiry:
First, the court must decide whether the alleged offending
conduct has been established on a preponderance of
probabilities, which is a factual inquiry.
Second, it must consider whether the person concerned 'in the
discretion of the court' is not a fit and proper person to continue
to 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.
And third, the court must inquire whether in all the
circumstances the person in question is to be removed from the
roll of attorneys or whether an order of suspension from practice
would suffice.
[5] As far as the second leg of the inquiry is concerned, it is well
to remember that the Act contemplates that where an attorney
is guilty of unprofessional or dishonourable or unworthy conduct
27
different consequences may follow. The nature of the conduct
may be such that it establishes that the person is not a fit and
proper person to continue to practise. In other instances the
conduct may not be that serious and a law society may exercise
its disciplinary powers, particularly by imposing a fine or
reprimanding the attorney (s 72(2)(a)). This does not, however,
mean that a court is powerless if it finds the attorney guilty of
unprofessional conduct where such conduct does not make him
unfit to continue to practise as an attorney. In such an event the
court may discipline the attorney by suspending him from
practice with or without conditions or by reprimanding him: Law
Society of the Cape of Good Hope v C 1986 (1) SA 616 (A) at
638I - 639E; Law Society, Cape of Good Hope v Berrangé 2005
(5) SA 160 (C) ([2006] 1 All SA 290) at 173G - I (SA) and 302
(All SA).
[6] As pointed out in Jasat, the third leg is also a matter for the
discretion of the court of first instance, and whether a court will
adopt the one course or the other depends upon such factors
as the nature of the conduct complained of, the extent to which
it reflects upon the person's character or shows him to be
unworthy to remain in the ranks of an honourable profession,
the likelihood or otherwise of a repetition of such conduct and
the need to protect the public. Ultimately it is a question of
degree. It is here where there appears to be some
misunderstanding.
[7] First, in deciding on whichever course to follow the court is not
first and foremost imposing a penalty. The main consideration is
the protection of the public.”
[29] At no stage did the applicant discipline, fine or suspend the
respondent. As such, the exercising of a discretion to refer the
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respondent’s conduct to the Court for the Court's determination of
her status as an officer of the Court, does not fall within the
definition of administrative action. So too does the exercise of the
applicant’s discretion not adversely affect the rights of the
applicant and does not have a direct, external legal effect.
[30] The applicant contended that due to the fact that the conduct of
the respondent does not constitute administrative action, the
application to compel and the review application in its entirety
constitute nothing more than delaying tactics, envisaged to derail
the finalisation of the striking application. I am in full agreement
with this contention.
[31] The Courts, including the Supreme Court of Appeal (SCA), have
repeatedly pronounced that sui generis disciplinary proceedings
are not normal civil proceedings. The LPC (applicant) merely
brings the attorney before Court by virtue of a statutory right and
informs the Court as to what the attorney has allegedly done and
asks the Court to exercise its disciplinary power. It does not
institute any action or civil suit against the attorney. It merely
submits to the Court facts which it contends constitute
unprofessional, dishonourable and unworthy conduct.
[32] The technical defence raised by the respondent that the applicant
failed to follow its own procedures relating to conducting
disciplinary proceedings, is moot. It is not peremptory for the
29
applicant to have pursued formal charges before a disciplinary
committee, if in its opinion’ the respondent was no longer a fit and
proper person to continue to practice as an attorney. The applicant
may proceed with an application to strike without pursuing a formal
charge before a disciplinary committee if in its opinion, having
regard to the nature of the charges, a practitioner is no longer fit
and proper to remain on the roll of attorneys.
[33] In my view, the “decision” that the applicant now seeks to review
does not constitute ‘administrative action’ due to the fact that it is
not a decision at all. The applicant deferred to this Court in terms
of section 22(1)(d) of the Attorneys Act. The aforesaid referral
does not constitute administrative action, as envisaged by section
1 of PAJA.
The application to compel and the Rule 6 (5) (d) (iii) notice.
[34] The respondent filed and served an application to compel the
applicant to file the record of the proceedings that sought to be
reviewed, corrected and set aside in terms of Rule 53 (1) (b),
together with the reasons for the decision/resolution to apply to
Court for the suspension and removal/striking off. The applicant
failed to comply with the request. A notice in terms of Rule 30 A (1)
was served on the applicant’s attorneys calling on them to comply
with the notice in terms of Rule 53 (1) (b). The applicant also failed
to comply with the Rule 30 A (1) notice. Instead, the applicant filed
a notice to oppose the Rule 53 (1) (b) application and also a notice
30
in terms of Rule 6 (5) (d) (iii) on a point of law. In essence, the
applicant sought a dismissal in limine of the respondent’s Rule 30
A (1) application, the application to compel and the review
application. As alluded to earlier, the applicant need not at first
conduct a disciplinary hearing before it can decide to apply to
Court for the suspension and or removal/striking off of an attorney
in terms of Section 72 (6) of the Attorney’s Act.
[35] Furthermore, the decision or resolution taken by the applicant to
apply to court for the suspension and or removal/striking off of the
name of an attorney from the roll of attorneys, is not a decision as
defined in section 1 of PAJA. The decision to refer the offending
conduct to the Court comes at the instance where the applicant is
of the view that the conduct is so serious that it warrants a decision
of the Court to decide whether or not the practitioner is fit and
proper to remain on the roll of attorneys.
[36] As previously stated, an order for the suspension of the
respondent was already granted by this Court. Only thereafter did
the respondent challenge the decision/resolution of the applicant to
apply to court for her suspension and or removal/striking off of her
name from the roll of attorneys. This comes after the fact.
Therefore, the contention by the applicant that this is merely a
delaying tactic employed by the respondent. It is for these
reasons that the prayers as set out in paragraphs 1 and 2 of
the order, were granted.
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[37] The applicant prayed for a special cost order on an attorney and
client scale, due to the conduct of the respondent. Not only is it
custom that in applications of this nature, costs shall be awarded
on the punitive scale as between attorney and client, but the
conduct of the respondent in being obstructive and not to co-
operate fully from the onset with the applicant and Reddy, justify
the awarding of such a punitive cost order. This is to mark the
Court’s disapproval and disquiet with the unprofessional and
unethical conduct of the respondent.
Conclusion
[38] Having regard to the facts of this matter, the seriousness of the
transgressions complained of as well as the interest of the public, I
am of the view that the respondent is no longer a fit and proper
person to continue to practice as an attorney and her name should
be removed/strike off from the roll of attorneys. Therefore, an
order is granted in the terms as set out in paragraphs 3 to 14
under the heading: Order.
____________________________ R. D. HENDRICKS
DEPUTY JUDGE PRESIDENT OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG
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I agree.
____________________________
B. R. NONYANE
ACTING JUDGE OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG