Law Society of the Northern Provinces v Maseka
| Jurisdiction | South Africa |
| Judge | Bam J, Mogagabe AJ |
| Judgment Date | 21 September 2007 |
| Docket Number | 443/2006 |
| Court | Bophuthatswana High Court |
| Hearing Date | 30 March 2007 |
| Citation | 2008 JDR 0151 (B) |
Mogagabe AJ:
This is an application by the Law Society of the Northern Provinces ("the Law Society") to strike the name of the First Respondent from the roll of attorneys pursuant to the provisions of Section 22(1)(d) of the Attorneys Act 53 of 1979 ("the Act") and for further ancillary relief.
First Respondent is an attorney who practices for his own account in GaRankuwa, North West Province, under the style Jake Maseka Attorneys. He was admitted as an attorney of this division on 10 March
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1988 and of the High Court of South Africa (Transvaal Provincial Division) on 28 June 1988. He is a member of the Law Society of Bophuthatswana.
Applicant is the LAW SOCIETY OF THE NORTHERN PROVINCES, incorporated in terms of Section 56 of the Act as the Law Society of the Transvaal. In terms of the Act, every attorney, notary and conveyancer duly admitted, enrolled and practising as such in the provinces of Gauteng, Mpumalanga, Limpopo and portions of the North West Province is, ipso facto, a member of the Law Society.
Second Respondent is THE LAW SOCIETY OF BOPHUTHATSWANA, a statutory body established in terms of the Bophuthatswana Attorneys Act, No 29 of 1984. Second Respondent, cited as an interested party, has filed no answering papers as no relief is sought against it.
BACKGROUND
In August 2006, the Law Society launched an urgent application seeking in terms of Part A thereof, the suspension of First Respondent to practice as an attorney pending the application for the removal of his name from the roll of attorneys in terms of Part B thereof.
On 18 August 2006 Hendricks J granted an order suspending First
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Respondent from practising as an attorney, pending the determination of the application for the removal of his name from the roll of attorneys.
Thereafter First Respondent sought leave to appeal against the said suspension order, which application was unsuccessful. He then petitioned the Supreme Court of Appeal (SCA) for the necessary leave to appeal, which application the SCA likewise turned down in December 2006.
Subsequent thereto, First Respondent filed his answering papers in response to the instant application and the Law Society likewise filed its replying papers in response thereto. With leave of the Court, both parties were allowed to file supplementary affidavits relating to the matter.
SECTION 22(1)(d) OF THE ACT
Section 22(1)(d) empowers a Court upon application by the law society concerned, either to suspend an attorney from practice or strike his/her name from the roll, if such attorney "in the discretion of the Court, is not a fit and proper person to continue to practice as an attorney"
It is trite law that the interpretation and application of the provisions of
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Section 22(1)(d) of the Act entails a threefold inquiry [1] , namely:
Firstly, whether the law society concerned has established on a preponderance of probabilities the alleged misconduct upon which it relies to have an attorney's name removed from the roll.
Secondly, whether in view of the misconduct so established, such attorney is not a "fit and proper person to continue to practice as an attorney" The determination of this issue is a matter that requires the exercise of a discretion by the Court. [2]
Finally, the Court must make a decision in the exercise of its discretion, whether such attorney who has been found not to be a fit and proper person to practice as an attorney, should be struck from the roll or suspended from practice. This likewise, is a matter that requires the exercise by the Court of its discretion. In other words the decision as to whether to strike an attorney from the roll or suspend him/her from practising as such, squarely falls within the exercise by the Court of its
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discretionary powers. [3]
I interpose to mention that applications of this kind are in the nature of a disciplinary inquiry being sui generis and do not by nature constitute a lis between the law society and a particular practitioner. The primary duty of the law society concerned as custos morum of the attorney's profession and for the protection of the public in their dealings with attorneys, is to place facts before the Court for consideration. [4]
Although the views of a law society should be accorded due weight, the Court however, is not bound by such views. [5]
POINTS IN LIMINE
At the commencement of the hearing, Mr Pistor appearing on behalf of First Respondent informed the Court that First Respondent was no longer desirous of proceeding with the various points in limine he had raised on the papers and was accordingly abandoning same.
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ALLEGED THEFT ON THE PART OF FIRST RESPONDENT
Further, Mr Lamey on behalf of the Law Society, and during the course of his argument conceded upon any enquiry from the Court that this case has nothing to do with any fraud or theft of trust funds on the part of First Respondent. However he submitted that the charging by First Respondent of allegedly exorbitant fees, particularly in respect of indigent clients, reflects a "tinge of dishonesty" on his part. He invited the Court to make a finding that the mere charging by First Respondent of such exorbitant fees, should be construed or is tantamount to theft.
This being not the case made out on the papers on behalf of the Law Society nor it being the case in which First Respondent was called to meet nor any supplementary affidavit filed on behalf of the Law Society raising such issues, the said submission by Mr Lamey from the bar cannot in the circumstances hold sway and consequently the invitation is declined.
I turn now to deal with the facts and circumstances which Applicant contends establish unprofessional, dishonourable and unworthy conduct on the part of the First Respondent warranting the removal of his name from the roll of attorneys, as set out hereinafter.
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PRACTISING WITHOUT A FIDELITY FUND CERTIFICATE
In terms of Section 41(1) of the Act, an attorney is prohibited from practising without a Fidelity Fund Certificate. The Law Society alleges that First Respondent violated this provision and practiced as an attorney without being in possession of a Fidelity Fund Certificate issued by it for the financial period ending February 2006.
The submission by an attorney of the annual rule 70 auditor's report, is a condition precedent to the issuing of a Fidelity Fund Certificate in terms of the Law Society's rules. Failure to do so entails that an attorney could not be furnished with such certificate, with the concomitant effect that practising without same constitutes a criminal offence in terms of Section 83(10) of the Act.
In its founding papers, the Law Society alleges that First Respondent is not in possession of such certificate. According to its records he failed to apply for same for the financial year ending February 2006 in consequence of which it "will not be prepared to issue the First Respondent with a Fidelity Fund Certificate for 2006, should he apply for one." That "He simply continued practising as an attorney from 1 January 2006. By doing so, he contravened the provisions of Section
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41 of the Act and committed an offence." [6]
Upon closer scrutiny these allegations appear to be factually incorrect, more particularly in that in response thereto, First Respondent showed that he did apply for such a certificate for the financial year ending February 2006 by submitting the requisite rule 70 auditors report, a copy of which is annexed to the answering papers. [7] In consequence thereof, the Law Society issued to First Respondent such certificate on 26 April 2006, a copy of which is likewise annexed to the answering papers. [8]
In its replying papers, the Law Society, whilst conceding the issuing of the said certificate to First Respondent, contended that nonetheless a finding should be made that he practised without such a certificate for two months, i.e. March and April 2006. This particular submission seems not to take into account the fact that the delay in so issuing such certificate was not due to any dishonest or fraudulent conduct on his part if regard is had to the affidavit of Grobler, a director of the Law Society. [9] To my mind, the late issuing thereof seems to have been caused by a delay on the part of the Law Society. As such the practice
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by First Respondent without the requisite certificate for the said two months appears in the circumstances to have been due to necessity occasioned in consequence of such delay on the part of the Law Society. In any event, even if I may be wrong on this finding, the transgression of so practising without the required certificate for two months cannot in the circumstances in itself evince any dishonesty on First Respondent's part if not attributable to any fraudulent or dishonest conduct on his part.
This being so, it has not been demonstrated that First Respondent had committed the offending conduct of practising without the required fidelity certificate, except for a period of about two months, as outlined above.
DEFICIENCIES
The Law Society engaged the services Mr Faris (a qualified chartered accountant and auditor) to inspect First Respondent's books of account and prepare an audit report. In consequence thereof, Faris prepared a report in terms of which he found there were certain deficiencies in the trust account of First Respondent as follows:
February 2004, R449,82;
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July 2004, R 1 591,89;
August 2005, R1 942,31;
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