The Law Society of the Northern Provinces v Setshogoe

• Judge: Prinsloo J, Makgoka AJ
• Judgment Date: 05 February 2009
• Citation: 2009 JDR 0064 (T)
• Docket Number: 5273/2005
• Hearing Date: 23 October 2008
• Court: Transvaal Provincial Division

Prinsloo J:

[1]

This is an application by the applicant professional body to have the name of the respondent attorney struck from the roll of attorneys in terms of the provisions of section 22(1)(d) of the Attorneys Act 53 of 1979 ("the Act").

[2]

Section 22(1)(d) of the Act reads as follows:

"(1)

Any person who has been admitted and enrolled as an attorney may on application by the society concerned be struck off the roll or suspended from practice by the court within the jurisdiction of which he practises –

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(a)

…

(b)

…

(c)

…

(d)

If he, in the discretion of the court, is not a fit and proper person to continue to practise as an attorney; …"

[3]

Before us, Mr Lamey appeared for the applicant and Mr Joubert appeared for the respondent.

Introduction and Background

[4]

The respondent was admitted as an attorney on 22 November 1988. At all relevant times he was practising for his own account under the style of Benny Setshogoe Attorneys, in Pretoria. As will be pointed out, he also, from time to time, ceased practising, inter alia to become an acting magistrate, thereafter returned to the profession, or attempted to do so, and is again, according to his latest affidavit, serving as a magistrate under contract.

[5]

As an attorney, the respondent is also a member of the applicant Law Society.

[6]

As a result of the receipt by the applicant of a complaint from a client of the respondent concerning his professional conduct, the applicant

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resolved during July 2004 to request its auditor, Deleeuw Swart ("Swart") to conduct an inspection of the respondent's accounting records.

[7]

Swart is a Chartered Accountant (SA) and Registered Accountant and Auditor with many years experience in this field. He is an expert in the field of attorneys' accounting records and the manner in which they should be kept in terms of the Act and in terms of generally accepted accounting practice.

[8]

The Law Society has instructed Swart in many similar matters in the past. The findings which he has made and reports which he has submitted have been used by the Law Society in support of applications, similar to the present one, in respect of practitioners who had made themselves guilty of dishonourable, unworthy or unprofessional conduct.

[9]

Swart visited the respondent's office on 12 July, 25 August and 9 September 2004 in order to fulfil the aforesaid mandate. He thereafter prepared a report dated 30 September 2004 ("the Swart report"), a copy of which is attached to the founding papers.

[10]

The applicant also received a number of complaints from erstwhile clients of the respondent. Some are dealt with in the Swart report, and others came to light at a later stage.

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[11]

After receipt of the Swart report, the applicant resolved to launch this application to this Court for an order striking the name of the respondent off the roll.

[12]

The application was launched in March 2005. Part A of the notice of motion was aimed at obtaining an order suspending the respondent from practice as an attorney pending the final determination of this application. Part A was crafted in such a way as to allow for the respondent to surrender and deliver to the registrar his certificate of enrolment and to interdict the respondent from operating his trust account. There was also provision for Mr Johan van Staden, the head – members affairs of the applicant, to be appointed as a curator to administer and control the trust accounts of the respondent, to take possession of the respondent's accounting records and to perform a wide range of functions and execute certain powers generally to be vested in such a curator in applications of this nature.

[13]

Part B of the notice of motion, which is the application that came before us, contains the following prayers:

"1.

That on a date which will be allocated by the Honourable Deputy Judge President applicant will apply for the following order:

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1.1

That the name of the respondent is struck off the roll of attorneys of this honourable court.

1.2

That the relief set out in section A paragraphs 1.3 up to and including 1.11 is incorporated in this order of court.

1.3

That the respondent is hereby directed:

1.3.1

To pay, in terms of section 78(5) of Act 53 of 1979, the reasonable costs of the inspection of the accounting records of respondent;

1.3.2

To pay the reasonable fees and expenses of the curator;

1.3.3

To pay the reasonable fees and expenses of any person (s) consulted and/or engaged by the curator as aforesaid;

1.3.4

To pay the cost of this application on an attorney and client scale."

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[14]

Although Part A of the notice of motion was enrolled for hearing on 15 March 2005, it was not proceeded with on that date, presumably because of notification from the respondent that he was in the process of winding-up his business. In his answering affidavit, the respondent says that he gained employment as a magistrate with effect from 8 February 2005.

[15]

The papers do not present a clear picture as to the reason for the 2005 postponement and as to events following such postponement but it is clear that the applicant was determined to proceed with the application, ,and, on 6 February 2006, this Court granted an order in terms of Part A of the notice of motion. It appears that the respondent was represented by counsel on that day. Respondent's counsel initially asked for a postponement, having told the presiding judge, MYNHARDT, J that he only received instructions the previous weekend, and counsel also told the learned judge that "my instruction was that that order was not granted (presumably a reference to the March 2005 postponement) … respondent was no more practising as from the end of 2004, so that it was not necessary for that order to be granted".

Nevertheless, after some debate between the presiding judge and counsel, the Part A order was granted and the respondent filed an answering affidavit on 28 February 2006.

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[16]

The answering affidavit was followed by a replying affidavit on behalf of the applicant in which, inter alia, details are recorded of four further complaints against the respondent received from erstwhile clients of his during the interim period. The replying affidavit was filed on 3 May 2006.

[17]

On 26 April 2007 the applicant filed a supplementary affidavit and I find it convenient to quote a few paragraphs from this affidavit:

"2.12

This application has previously been enrolled for hearing on 6 February 2006. On this day the Honourable Court interdicted the respondent from practising as an attorney. Ancillary relief was also granted. I refer the Honourable Court to a copy of the order of court dated 6 February 2006 …

3.

The respondent persisted in his failure to cooperate with the Law Society. Consequently, the Law Society was unable to execute the order of court dated 6 February 2006.

4.

On 5 May 2006 the Law Society instructed its attorney of record to instruct the sheriff of the High Court to serve and execute the court order.

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5.

The sheriff was unable to serve and execute the court order due to the fact that the respondent left his last known address, being 641 Koedoeberg Drive, Fearie Glen, Pretoria, Gauteng. A copy of the return of non-service is attached hereto …

6.

The respondent failed to advise the Law Society of his change of address as he was obliged to do in terms of the provisions of rule 3 of the Law Society's Rules.

7.

The Law Society then instructed its attorney of record to appoint a tracing agent in order to ascertain the respondent's whereabouts.

8.

The tracing agent was unable to locate the respondent.

9.

On 24 August 2006 the respondent's attorney of record addressed a letter to the Law Society's attorney of record. A copy of this letter is attached hereto …

10.

The respondent, inter alia, submitted that he did not understand why his conduct and behaviour was regarded as serious. This submission is with respect significant. He admitted, however, that the complaint received by the Law Society from Rashedo was in fact serious (my note:

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Rashedo is one of the complainants, to whom reference will be made later).

11.

The Law Society considered the abovementioned letter and instructed its attorney to reply thereto. A copy of this reply, dated 4 October 2006, is attached hereto …

12.

Both the aforementioned letters (annexures 3 and 4) are relevant and important for purposes of this application.

13.

It appears from the letters that the respondent is not prepared to cooperate with the Law Society or to comply with an order of this Honourable Court.

14.

In the letter dated 4 October 2006 (annexure 4) the respondent was specifically referred to the fact that he has failed to furnish the Law Society with his accounting records and client files.

15.

On 24 November 2006 the Law Society's attorney of record addressed a further letter to the respondent's attorney of record. A copy thereof is attached hereto as annexure 5. The respondent's attorney of record was specifically requested to advise where the respondent's

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accounting records in respect of his practice up to September 2004 were.

16.

The respondent's attorney of record replied to the abovementioned letter on 8 December 2006. A copy of this letter is attached hereto as annexure 6.

17.

The respondent's attorney of record explained that the firm's accounting records were indeed available. It was, however clear from the letter that the respondent persists in his failure to hand his accounting...