South African Legal Practice Council v Masingi
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Pretorius J |
| Judgment Date | 13 September 2023 |
| Citation | 2023 JDR 3524 (GP) |
| Hearing Date | 07 September 2023 |
| Docket Number | 2023-077988 |
| Court | Gauteng Division, Pretoria |
Pretorius J:
This is an urgent application for the respondent, Jacob Abel Masingi, to be struck from the roll of attorneys of this Court, alternatively, to suspend the respondent from practice as an attorney, on such terms and conditions as the Court orders.
SERVICE OF THE APPLICATION:
The sheriff effected service on the respondent on 8 August 2023. A notice of intention to oppose the application was served on 11 August 2023. Nothing was heard from the respondent until 5 September 2023 when the matter was on the roll for urgent applications. Counsel appeared for the respondent.
No answering affidavit was delivered, although the respondent was granted more than the prescribed time since service of the application.
The Court stood the matter down until 7 September 2023, to afford the respondent the opportunity to file his opposing papers at this late stage.
Although the Urgent Court Roll had closed at 12h00 on 31 August 2023, the respondent only filed his answering affidavit on 4 September 2023 and
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SERVICE OF THE APPLICATION
his heads of argument on 4 September 2023. This was in total contravention of the rules, but due to the relief sought of, either suspension from the practice of an attorney, or striking off the roll of the attorneys, the Court granted the respondent the indulgence.
Unfortunately, the respondent once more did not adhere to the Rules of the High Court but filed a document with the heading “RESPONDENT’SANSWERING AFFIDAVIT AND FOUNDING AFFIDAVIT IN THE COUNTER-APPLICATION.” This is a total abuse of this Court’s Rules.
The counter application was not brought in terms of the Rules as an urgent application and I cannot understand that an attorney and his counsel can file such a document.
The gist of the document is that the respondent is launching a review application to review the decision by the Legal Practice Council of 17 April 2023 to approach the Court to have the respondent suspended as an attorney or to strike him off the roll of attorneys without first having a disciplinary enquiry.
The matter was heard on 7 September 2023. The Court enquired from the applicant whether the counter application was on the urgent court roll. Counsel for the respondent submitted that the counter application was not part of the urgent application. I therefor dealt with the urgent application before me. Counsel for the respondent’s heads of argument
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SERVICE OF THE APPLICATION
dealt with the review application and did not deal with the application before Court. His argument in Court was mostly dealing with the review application, although he had conceded that the review application was not before this Court.
THE PARTIES:
The applicant is The South African Legal Practice Council (“LPC”) who exercises jurisdiction over all legal practitioners and, inter alia, regulates the professional conduct of legal practitioners.
The respondent is Jacob Abel Masingi, an adult male, who was admitted and enrolled as an attorney of this Court on 7 September 2010.
He has been practising as an attorney under the name and style of A J Masingi Attorneys since 4 March 2011 at 234 Van Erkom Building, 217 Pretorius Street, Pretoria and/or at 205 Masada Building, c/o Ramakoase Streets, Pretoria. Both these offices are vacated, and he is presently practising at 860 Mance Avenue, Mayville, Pretoria.
The name of the respondent is still on the roll of legal practitioners of this Court and this Court has jurisdiction to hear the application.
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THE PARTIES
THE LAW: URGENCY:
Section 43 of the LPC Act provides: “Despite the provisions of this Chapter, if upon considering a complaint, a disciplinary body is satisfied that a legal practitioner has misappropriated trust monies or is guilty of other serious misconduct, it must inform the Council thereof with the view to the Council instituting urgent legal proceedings in the High Court to suspend the legal practitioner from practice and to obtain urgent interim relief”.
In the matter of The Law Society of the Northern Provinces v Morobadi (1151/2017) [2018] ZASCA 185(11 +December 2018) at para 25 the Supreme Court of Appeal held: “In general, it is correct that the Council may proceed with the application for the striking off of the applicant for his or her suspension from practice 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 considered to be a fit and proper person.”
The main complaint from the respondent is that the matter is not urgent as the decision had been taken on 17 April 2023 by the LPC to institute the present application. According to the respondent no case for urgency was presented to the Court. The applicant’s counsel referred the Court to the continuing complaints against the respondent. The last complaint was received by the applicant on 30 June 2023. I cannot find that there has been an unreasonable delay in launching the application.
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THE PARTIES
If I apply the provisions of section 43 of the LPC Act and the dictum in Morobadi’s case I find that the matter is urgent notwithstanding the delays. Although I am not dealing with the review application, it is clear from the provisions of section 43 and the dictum in the Morobadi case that the LPC need not have conducted a disciplinary enquiry before approaching the Court for the relief it is requesting.
It is trite that in an application for removal or suspension of a legal practitioner from practice a three-stage enquiry is involved to decide whether the applicant had shown on a balance of probabilities that the legal practitioner should be suspended or struck off the roll of legal practitioners as set out in Summerley v Law Society, Northern Provinces 2006(5) SA 613 (SCA).
The first stage is to decide whether the offending conduct has been established on a balance of probabilities. The second is to determine whether the conduct of the respondent is of such a nature that he is no longer a fit and proper person to practise as an attorney if his conduct is compared to that expected from an attorney. The third stage is to determine whether the respondent should be removed from the roll of attorneys or whether an order for suspension for a period will suffice if all the circumstances are considered.
BACKGROUND:
The LPC brought this application on an urgent basis, inter alia, upon a receipt of a complaint by a certain Ms Bopape. As a result of the complaint
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THE PARTIES
an investigation was conducted into the affairs of the respondent in terms of section 37(2) (a) of the LPC Act.
The investigation was done by Mr Philasande Nyali, a chartered accountant, who is employed as an auditor in the LPC’s Risk and Compliance Unit.
Mr Nyali submitted a report containing his findings after inspection of the respondent’s accounts and other documents.
He sets out that he had great trouble to get the respondent to assist him and for the respondent to provide all the necessary documents as requested.
On 3 March 2022 he had a meeting with the respondent and provided the respondent with a list of all the information he sought from the respondent. On 24 March 2022 the respondent delivered certain documents, but some documents were outstanding.
On 29 March 2022 Mr Nyali reminded the respondent that certain documents were outstanding. On 11 May 2022 the respondent requested an additional two weeks to supply the documents.
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THE PARTIES
On 9 June 2022 Mr Nyali once more sent the respondent a reminder and set the date of 17 June 2022 for the respondent to supply the documents. Once more the respondent had an excuse and informed Mr Nyali that he was ill and would comply in the first week of July 2022.
On 12 July 2022 Mr Nyali once more requested the documents, to no avail.
On 12 August 2022 the respondent informed Mr Nyali that he was locked out of his office due to non-payment of his rent. He informed Mr Nyali that he would provide the requested documents on 31 (sic) September 2022.
He eventually delivered the documents to Mr Nyali on 3 November 2022-8 months after he had been requested to do so. He had been stalling and not co-operating with Mr Nyali for 8 months.
The respondent was very reluctant to co-operate with Mr Nyali and only through the perseverance of Mr Nyali did the respondent eventually comply.
At inspection of the accounts, bank accounts and books Mr Nyali found that on 4 June 2020 Ms Bopape, who had laid the complaint against the respondent at the LPC, had deposited R 350 000.00 into the trust account of the respondent. This was paid as a deposit for the purchase of a
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THE PARTIES
property. At that time, before the R 350 000.00 was deposited into the trust account of the respondent, the balance in the trust account was R54.88.
On 30 July 2020 the balance in the trust account was R100 054.88. Between...
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