Legal Practice Council v Mkhize
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | De Vos AJ |
| Judgment Date | 08 September 2023 |
| Citation | 2023 JDR 3537 (GP) |
| Hearing Date | 18 July 2023 |
| Docket Number | 13881/2021 |
| Court | Gauteng Division, Pretoria |
De Vos AJ:
INTRODUCTION
The case involves an application to remove Mr Mkhize from the roll of legal practitioners. The case engages, at the level of principle, the legitimacy of the legal system. The public’s faith in the legal system is a condition for the rule of law. The conduct of lawyers can diminish the legitimacy of the legal system. It is for this reason, that the Court has oversight over the conduct of its officers. The public must be able to trust their lawyers will act ethically and with integrity; and if the public cannot trust their lawyers: they must trust that the Court will not hesitate to act. This is such a case, in which the Court is requested to act to redeem a breach of the public’s trust in the legal system.
The Court has to consider two applications. The first is the application by the Legal LPC to suspend, alternatively strike Mr Mkhize from the roll of legal practitioners (“the LPC proceedings”). The LPC proceedings is underpinned by six complaints received from the public. At their core, the complaints are that Mr Mkhize, who practices as an advocate, has accepted instructions directly from the public. The second application is a review application launched by Mr Mkhize (“the review proceedings”). In the review proceedings, Mr Mkhize seeks to review and set aside the LPC’s decision to launch the LPC proceedings.
The Court deals first with the LPC proceedings before considering the review application.
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THE LPC PROCEEDINGS
The genesis of these proceedings is a complaint received from Ms Nkala. On 5 March 2020, Ms Nkala formally complained to the LPC. Her complaint, in essence is that she paid Mr Mkhize on three occasions and he failed to assist her. The outcome of the matter is that she had, despite employing Mr Mkhize to represent her and having paid him, lost her home which her grandmother had left to her.
Ms Nkala’s words in the complaint are that –
“I went to Adv Mkhize to help me. He wanted R 5 000 to open a file (04-06-19) after that he did nothing again. . . . now they’ve kicked me out in December. I just want my money back since he has done nothing up to now”.
Ms Nkala attaches three receipts to her complaint as proof that she paid Mr Mkhize. The first receipt is dated 9 June 2017 for R 10 000 for “service fees”, the second is dated 4 June 2019 for R 5 000 for “consultation”; and the third is for R 3000 dated 8 September 2019, also marked “service fees”. All three invoices bear the stamp of Advocate Senzo Mkhize with his address at the 3rd Floor Marble Chambers.
On 12 March 2020 the LPC sent the complaint with an invitation to respond to Mr Mkhize. Mr Mkhize did not respond. On 3 August 2020 the LPC sent Mr Mkhize a reminder. Again, Mr Mkhize did not respond. On 22 October 2020, the LPC extended a third invitation to Mr Mkhize. Mr Mkhize responded to this third invitation with a written response made under oath.
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Mr Mkhize’s written response accuses Ms Nkala of being vindictive. Mr Mkhize states that the money was “received by my secretary incorrectly”. Mr Mkhize’s statement provides that the “fees [were] received [by] my administrator Ms Zwane inappropriately” and “without Advocate Mkhize’s involvement”.
The LPC considered the complaint and Mr Mkhize’s response. A Senior Legal Officer in the LPC, Mr Fourie, prepared a Memorandum. The Memorandum sets out the facts as conveyed in the complaint and Mr Mkhize’s response. The Memorandum then notes that the -
“explanation given by Mr Mkhize actually raises more red flags in the sense that if he is to be believed, he had no control over his employees and took no effort to repay the complainant. It was also not a once off ‘error’. Some time passed between each payment and if he honestly wanted to reimburse the complainant he could have done so.”
The Memorandum highlights that the statement contains a contradiction regarding whether Mr Mkhize consulted with Ms Nkala. First, Mr Mkhize denies having consulted with Ms Nkala. Mr Mkhize denies that “at that particular dates as stated had I known or consulted Ntsiki Lindiwe Nkala” (paragraph 6). However, later on in the statement, Mr Mkhize states, “I consulted Ntsiki Nkala once to which she brought incorrect and incomplete information. . . in chambers” (paragraph 13).
The Memorandum notes further that Mr Mkhize rendered no further legal services and blames his ex-employees. The Memorandum notes that the contact details contained in the stamp at the bottom of Mr Mkhize’s statement to the LPC are identical to the stamp on the receipts. The Memorandum recommends that the LPC urgently apply to Court for the suspension of Mr Mkhize. The LPC
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contends that the complaint shows that Mr Mkhize takes instructions and monies directly from the public, fails to execute his mandate and fails to respond to correspondence to him by the LPC.
In April 2021, based on Ms Nkala’s complaint, the LPC proceedings were instituted. The LPC filed a founding affidavit setting out Ms Nkala’s complaint, the Memorandum from Mr Fourie and Mr Mkhize’s response.
Shortly after filing the founding affidavit, the LPC had to file a supplementary founding affidavit, as it had received five additional complaints regarding Mr Mkhize’s conduct. These complaints are by Ms Tshabalala, Ms Maloba, Ms Madela, Mr Taunyane and Mr Suleiman. The complaints appear in detail in the supplementary affidavit and are presented in a summarised form here.
The complaint by Ms Tshabalala, age 60, is that she paid Mr Mkhize R 10 000 and he failed to represent her in Court. Mr Mkhize also misrepresented to Ms Tshabalala what had occurred in Court. Ms Tshabalala’s words in the complaint are: “he said everything is fine, the matter is done and right, but he lied to us”. Ms Tshabalala complains that when she tried to call Mr Mkhize, he said he will meet her at his chambers; however, when she arrives the chambers are locked, and Mr Mkhize’s phone is switched off.
Ms Maloba, age 71, complained to the LPC that she instructed Mr Mkhize on 2 February 2018 to assist with a property transaction. Mr Mkhize charged Ms Maloba R10 000 for opening a “file/consulting/receiving” instruction. Ms Maloba further complained that Mr Mkhize did not complete his mandate. Although it is not clear, Ms Maloba’s complaint suggests that Mr Mkhize did not comply with
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either a court order or an instruction. Ms Maloba’s attempts to meet with Mr Mkhize were unsuccessful as he “kept on postponing our appointment to meet.”
Ms Madela, aged 83, complained to the LPC that she instructed Mr Mkhize to assist with the registration of a title deed into her family name. Mr Mkhize provided Ms Madela with a written “letter of engagement”. The letter of engagement shows that Mr Mkhize charged Ms Madela, amongst others, R 5 000 for “opening a file, consulting/receiving instructions from attorney”. The letter of engagement shows Mr Mkhize charged Ms Madela R 5000 for “sheriff fees”. Ms Madela provided the LPC with the written letter of engagement. [1] The letter of engagement bears Mr Mkhize’s details and appears to be an invoice together with Mr Mkhize’s banking details, specifically, the bank name, branch number and account number. The banking details are reflected as they would appear on an invoice. The letter of engagement is signed by Mr Mkhize.
Mr Taunyane complained to the LPC that he instructed Mr Mkhize to file a case against the trustees of Mogale Alloy Trust. The complaint was that Mr Mkhize failed to execute his mandate. He further alleges that he paid Mr Mkhize a sum of around R178 000, and despite his attempts to terminate Mr Mkhize’s mandate, Mr Mkhize refused to hand over the files.
The last complaint set out in the supplementary affidavit is that of Mr Suleiman. Mr Suleiman complained to the LPC that he paid an amount of R 2000 to Mr Mkhize to assist with a condonation application. Mr Suleiman says Mr Mkhize
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failed to execute his mandate and, on three occasions during 2018, agreed to refund him, but he never did.
The LPC’s original case consisting of one complaint, as set out in the founding affidavit, increased to a total of six complaints, after filing the supplementary affidavit.
Mr Mkhize did not file a notice of intention to oppose or an answering affidavit in response to these allegations and the LPC set the matter down on the unopposed roll. However, the Sheriff could not properly serve Mr Mkhize despite three attempts at Mr Mkhize’s chambers. On 29 March, 30 March and 31 March 2021 the Sheriff found no one at Mr Mkhize’s chambers and affixed the notice to his chamber doors. The LPC was not satisfied that this was sufficient service and therefore, the LPC served a notice of removal. In addition, the LPC launched a substituted service application. In response, Mr Mkhize launched eight applications against the LPC. I summarise these proceedings.
First, in May 2022, Mr Mkhize launched an urgent application seeking to interdict the LPC. The matter was removed from the urgent roll. Second, in June 2022 Mr Mkhize launched a second urgent application to interdict the LPC from proceeding with an application to suspend/strike Mr Mkhize. On 8 June 2022, Thlapi J made an order, by agreement, ordering Mr Mkhize to file a notice of opposition by 2 June 2022 and to file an answering affidavit within 15 days. Third, on 12 June 2022, Mr Mkhize applied to the Constitutional Court for direct access (CCT196/2022), seeking a declarator that the LPC has sought to hold his career hostage. The affidavit in support of the application for direct access is similar to the affidavit in support of the second urgent application...
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