South African Legal Practice Council v Dube

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: BF Mnyovu AJ and VV Tlhapi J
• Judgment Date: 27 August 2021
• Docket Number: 23500/2020
• Hearing Date: 27 August 2021
• Court: Gauteng High Court, Pretoria
• Citation: 2021 JDR 2345 (GP)

Mnyovu AJ:

Introduction:

[1]

This is an application for an order that the respondent be suspended from practicing as an attorney of this court, on such terms and on such conditions the court may deem to be appropriate, alternatively, that the respondent be suspended and called upon to show cause why his name should not be struck from the roll of Attorneys, as set out in the Notice of Motion.

[2]

The applicant is a regulatory body that was established in terms of Section 4 of The Legal Practice Act No 28 of 2014 (the LPA), which exercises jurisdiction over all practitioners. The applicant's main primary objective is to regulate the affairs of all practitioners, to enhance and maintain appropriate standards of professional practice, to protect public interest and exercise disciplinary procedures which are allegedly, unprofessional or dishonourable or unworthy conduct.

[3]

Since the conduct complained about preceded the coming into operation of the LPA on 1 November 2018. Section 119 (3) thereof provides that anything done in terms of a law repealed or amended by the Act remains valid if it is consistent with the LPA, and is deemed to have been done in terms of the corresponding provision of the LPA.

[4]

The applicant contended that the respondent is guilty of unprofessional or dishonourable conduct and, consequently, that he is a repeat offender and he is not a fit and proper person to continue to practice as a legal practitioner.

[5]

This application is vehemently opposed by the respondent. The respondent has also filed an application for condonation that was unopposed and granted by this court on 9 February 2021.

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Background:

[6]

The respondent is an admitted legal practitioner and was enrolled as member of the applicant on 12 February 2007. He was suspended on 13 October 2011 from practicing as an attorney for a period of one year. He was prohibited from practicing as such of his own account for a period of two years, following the expiry of the period of his suspension.

Complaint:

[7]

The facts and circumstances which prompted the applicant to launch the investigation is a complaint against the respondent that was lodged by Mr Carlos Joaquin Mazive, his former client; (Mazive). Mazive instructed the respondent on 20 August 2010 to act on his behalf in a claim against the Road Accident Fund. They agreed that the respondent would be entitled to a fee equivalent to 15 per cent of the proceeds of the claim. Mazive alleges that on the day of trial in court the respondent coerced him to sign a Contingency Fee Agreement, without explaining the agreement. He alleges that the respondent debited a fee of 25 per cent of the proceeds of the claim instead of 15 per cent as agreed upon. The respondent indicated that the Mazive complaint and his trust funds, relate to the developments which took place before his suspension on 13 October 2011.

[8]

On 18 October 2017, 17 November 2017 and 24 January 2018 respectively, an enquiry was held.

[9]

The respondent was notified to appear before the disciplinary committee of the council in order to answer to the following charges:

That he is guilty of unprofessional or dishonourable or unworthy conduct on the part of a practitioner in that he:

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1.

Contravened Rule 47.2 of the Rules for the attorney's Profession in that he failed to bring the file content to the Investigating Committee Meeting held on 6 March 2017;

2.

Contravened Rule 68.7 of the Rules of the Law Society of the Northern Provinces alternatively Rule 35.11 read with Rule 40.7 of the Rules for the Attorney's profession, in that he failed to, within a reasonable time after the performance or earlier termination of any mandate received from his client Mr Mazive, account to his client in writing and retain a copy of such account for not less than five years, each account containing details of:

a)

all amounts received by it in connection with the matter concerned, appropriately explained;

b)

all disbursements and other payments made by it in connection with the matter;

c)

all fees and other charges to or raised against the client and, where any fee represents an agreed fee, a statement that such fee was agreed upon and the amount so agreed upon; and

d)

the amount due or by client.

3.

Contravened Rule 89.24 of the Rules of the Law Society of the Northern Provinces alternatively Rule 49.6 of the Rules for the Attorney's Profession, in that he overreached Mazive or overcharged the debtor of Mazive which is unreasonable high, having regard to the circumstances of the matter; and

4.

Misappropriated funds in the matter of Mazive alternatively Rule 40. 14 of the Rules for the Attorney's Profession, in that he

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brought the profession into disrepute by inter alia misappropriating funds in the matter of Mazive

[10]

At the disciplinary enquiry on 18 October 2017 he pleaded not guilty on charges 1, 2, and 4, and pleaded guilty to charge 3. On 17 November 2017 he amended his pleas to guilty on charges 2 and 4. On 24 January 2018 he amended his plea on charge 1 to that of guilty, thereby confirming his plea of guilty on all four charges.

[11]

The complaint from Mazive and the responses from the respondent are summarized below:

11.1

On 12 October 2011 the respondent furnished Mazive with a "Summary Account" as appears below. Analysis of Mazive's capital award is indicated as follows which was the only ccounting received by him, from respondent without party and party costs.

Total Amount Paid	R1 333 255.00
Less 25% Contingency	R333 313. 00
Less Advocates Fees	R51 000. 00
Total Due Client	R948 095.00

The applicant had contended that the respondent has misappropriated Mazive's fund by debiting a fee of 25 per cent instead of 15 per cent as agreed upon. The respondent admitted guilty to such misappropriation before the disciplinary enquiry, as there was no Contingency Fee Agreement in place. In answer, respondent stated that he had entered into a contingency fee agreement even though he admitted guilt before the disciplinary enquiry, that the admission was erroneously made because there

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was a contingency fee agreement in place, therefore he had not contravened Rule 40.14

11.2

The applicant contended that the respondent's allegations regarding his failure to account to Mazive as found in his answering affidavit differ markedly from his testimony during the disciplinary enquiry. On 17 November 2011 after his suspension, the respondent drafted an attorney and client bill reflecting exorbitant amounts. 30 per cent was allocated to an attorney and client surcharge (which included travel charges only). Below is the respondent's attorney and client bill of costs that also served before the committee (annexure 9 to the present application):

	FEES
Total	R168 492. 00	R93, 718.65
Add 30% Attorney & Client Surcharge	R50, 547. 60
Subtotal	R219, 039.60
Add Disbursements	R93, 718. 65
VAT	R30, 665. 54
Due To Us	R343, 423.79

11.3

The respondent was asked to account for the 30 percent attorney and client surcharge during the disciplinary proceedings. He failed to account and conceded that 30 per cent should not have been levied. Applicant contended that he retained the sum of R51 000.00 which he received from the road accident fund as part of the party and party costs, which were due to Mazive. In a bid to remedy the alleged retention of the sum of

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R51 000.00 the respondent paid the sum of R51 000.00 to Mazive at the disciplinary hearing. He pleaded guilty for failing to account to client.

11.4

In answer, the respondent stated that during the disciplinary enquiry he could not reasonably be in position to reconstruct any of his former office files, for the purposes of the disciplinary enquiry because he had no files at the time. On 17 November 2011, unbeknown to him, after his suspension, the party and party costs were drawn purportedly taxed and allowed in the sum of R119 348, 61 by the registrar. The Road Accident Fund did not challenge the fact that the aforesaid purported taxation was drawn after his suspension, and after he had seized to be the legal representative of Mazive. The aforesaid sum of R119 348.61 included an amount of disbursements of R61 971. 85. The respondent contended that Mazive received the sum of R48 623.05. From R61 971. 85, R51 000.00 was paid by the respondent leaving a residual sum of R10 971.61 for the respondent. This meant Mazive received two payments as recovery of party and party disbursements in the amount of R 99 623.05

11.5

The respondent stated that he erroneously paid the sum of R51 000. 00 to Mazive; as Mazive had already been paid the sum of R48 623.05. Therefore, in the circumstances he was entitled to the sum of R51000 (he erroneously paid) and R 10 971.61 making up the sum of R61 971. 85.

11.6

The respondent stated that the cost consultant who settled the party and party bill of costs was entitled to R8 753.91 which comprised of drawing fee of R5154.04 and an attendance fee of R3 599.87. The money was paid to Mazive as well. Overall Mazive is currently in

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possession of the sum of R61 971. 85 and R8 753.91 all amounting of R70 725.56.

11.7

The respondent stated these payments reduced his fee at R333 313.00 to R282 313. 00 and increased Mazive's funds at R948 095. 00 to R 999 995. 00.

11.8

Respondent stated that the taxed party and party costs of the sum of R119 348.11 without his knowledge was paid to Maluleke Tlasi Inc. attorneys by...