Legal Practice Council (Kwazulu Natal Provincial Office) v Rajkoomar and another
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Gounden AJ and Bezuidenhout J |
| Judgment Date | 09 June 2023 |
| Citation | 2023 JDR 2102 (KZP) |
| Hearing Date | 13 March 2023 |
| Docket Number | 5603/19P |
| Court | KwaZulu-Natal Division, Pietermaritzburg |
Gounden AJ (with E Bezuidenhout J concurring):
Introduction:
The applicant, who is described as the Legal Practice Council, seeks to strike the name of the first respondent, Mr Praneel Rajcoomar, from the roll of legal practitioners together with ancillary relief.
The proceedings before the court are of a disciplinary nature and are sui generis. The court is obliged to embark upon a three stage enquiry which has been summarised as follows:
'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.' [1]
The courts have repeatedly emphasized that impeccable ethical standards are required of an attorney who practises law. He is to conduct himself with the utmost integrity and with scrupulous honesty. The Supreme Court of Appeal has commented that the heavy responsibility which officers of the court are required to shoulder in 'upholding the Constitution' is 'without parallel'. [2]
In a nutshell, this application involves the conduct of the first respondent who is alleged to have failed to carry out his mandate and abandoned his duties to his client. Upon an investigation by the applicant it was uncovered that the first respondent had failed to administrate and manage his practice finanaces in an appropriate manner.
2023 JDR 2102 p4
Gounden AJ (with E Bezuidenhout J concurring)
In opposition, the first respondent has raised various points in limine. At the hearing of this application it was agreed between the parties that the court would deal with the points in limine before engaging with the merits of the application, as the effect of the first respondent being successful on any of the points in limine may be dispositive of the matter.
The in limine challenges are as follows:
The applicant's locus standi to institute the application;
An alleged defect in the notice of motion;
The deponent to the founding affidavit lacks the personal knowledge and the requisite authority to bring the application;
The applicant instituted the application in terms of the Attorneys Act 53 of 1979 ('the Attorneys Act'), whereas the application should be in terms of the provisions of the Legal Practice Act 28 of 2014 ('the LPA') as it was instituted after 1 November 2018. The provisions of the LPA prescribe a disciplinary procedure before the institution of an application and this process has not been followed by the applicant. Arising from this point the first respondent also submits that there is no prima facie case or cause of action;
An estoppel challenge.
Prior to engaging with the points in limine it is necessary to set out a background of the factual history of this matter.
The factual background:
In June 2016 the applicant received a complaint against the first respondent, who is an attorney of 25 years, from Ms Fawzia Essop Bacus, an attorney, who at the time was employed by the Verulam Justice Centre. The first respondent was known to Ms Fawzia Bacus as they had worked with each other over the years.
In 2009 Ms Fawzia Bacus instructed the first respondent to attend to the administration of an immovable property that belonged to her mother, Ms Sheriffa Bacus, which involved the collection of rental and other property related
2023 JDR 2102 p5
Gounden AJ (with E Bezuidenhout J concurring)
matters.
In terms of the first respondent's mandate he would attend to the rental collections in respect of the property, which would be received into his trust account and utilised to pay the bond instalment for the property, the rates and other utilities on a monthly basis. He would provide a monthly statement of account reflecting all monies collected and disbursements made in respect of the property.
Ms Fawzia Bacus relocated to the Western Cape and her sister, who lived in Durban, continued to deal with the first respondent. It was at this stage that the sister raised a query with the first respondent's office as she was not receiving the monthly statements of accounts. The first respondent's office was being evasive, which led to the sister complaining to Ms Fawzia Bacus about the lack of response received. Ms Fawzia Bacus attempted unsuccessfully to contact the first respondent by making numerous telephone calls and leaving several messages.
Sometime in 2015 Ms Fawzia Bacus became aware that Nedbank, the bond holder of the property instituted foreclosure proceedings against the property as the bond instalment had not been paid. Ms Fawzia Bacus attempted to arrange an urgent meeting with the first respondent, but was unsuccessful in all her attempts.
As a result of the many failed attempts to contact the first respondent Ms Fawzia Bacus terminated the first respondent's mandate. She contacted Nedbank and made arrangements to settle the indebtedness to rescue the property from a sale in execution. Thereafter, Ms Fawzia Bacus instructed attorneys TC Mehta and Company to administer the property, and laid a complaint with the applicant relating to the conduct of the first respondent.
The applicant appointed two senior attorneys Mr Praveen Sham ('Mr Sham') and Ms Manette Strauss ('Ms Struass') as members of the inspection
2023 JDR 2102 p6
Gounden AJ (with E Bezuidenhout J concurring)
committee. Upon the first inspection, the inspection committee reported inter alia that the first respondent had compiled a report and a reconciliation and paid the sum of R194 399.47 to Ms Sheriffa Bacus. He was unable to provide any explanation why the bond instalments for the property were not paid despite there being a credit balance. He admitted that he failed to supervise the person in his office who was responsible for handling the matter. He was unable to produce any financial records as these records were with his accountant. The records he did have were in an office, which office was locked. His accountant had the only key to the office. The inspection was adjourned for the production of the records. Thereafter the first respondent, in writing, objected to the continuation of the inspection and challenged the legal standing of the inspection committee. He also alleged that his accountant was hijacked and not available.
A subpoena was subsequently issued for an interview with the first respondent. At this stage, the first respondent engaged the services of an attorney who raised various objections to the interview. After various aborted attempts to conduct the interview the first respondent eventually attended the inspection and produced his accounting records. It is alleged that the first respondent admitted that there was a shortfall of approximately R1.9 million in his trust account, which was remedied through an agreement with a client who allowed him to utilise the monies on certain terms. The first respondent's attorney confirmed that there was a general deficiency in his trust account and that his books of accounting where not properly written up. A further inspection was undertaken where further irregularities were uncovered.
The inspection committee commented as follows in their report dated 1 December 2016:
'This is one of the sorriest looking set of books that we have come across. Rajcoomar acknowledged that his knowledge of bookkeeping was limited and in our view his bookkeepers knowledge of legal accounting is even more limited'.
As a result of the investigation the KwaZulu-Natal Law Society resolved to bring proceedings to remove the first respondent from the roll of attorneys. In
2023 JDR 2102 p7
Gounden AJ (with E Bezuidenhout J concurring)
April 2017 an application was instituted, but was withdrawn due to technical deficiencies in the application. In May 2019 the applicant's council approved the recommendation of its committee that the resolution taken by the KwaZulu-Natal Law Society, to institute proceedings for the removal of the first respondent's name from the roll of legal of practitioners, is confirmed.
Thereafter the applicant instituted the present application as it formed the view that the first respondent had little or no understanding of basic accounting principles after a lengthy period of practice; there was no clear distinction between the first respondent's trust and business account; the first respondent acknowledged an indebtedness to Ms Sheriffa Bacus without providing any clarity on the details; there was a reasonable suspicion that he was rolling trust funds; as a senior attorney he showed disregard to the instruction of Ms Fawzia Bacus and a reckless abandonment of the matter. This led to unnecessary stress and trauma for the Bacus family. All these issues were indicative of misappropriation of trust monies and unprofessional conduct.
The first respondent's answer to the Bacus complaint is that his records reveal that there was insufficient income to meet the monthly expenses on the property and that he paid the expenses from his business account, because of his long standing relationship with Ms Fawzia Bacus. He furnished a full reconciliation of account to attorneys TC Mehta and Company, which they accepted. His difficulty in communicating with Ms Fawzia Bacus was that his office was burgled and it took him time to set up new infrastructure and that he did attempt on...
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