Law Society of the Cape of Good Hope v Maci (994/2012) [2012] ZAECGHC 46 (14 June 2012)

3

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

Case no: 994/2012

Date Heard: 31/05/12

Date Delivered: 16/06/12

In the matter between:

THE LAW SOCIETY OF THE CAPE OF

GOOD HOPE …..................................................................APPLICANT

Versus

SIZWE MACI …..............................................................RESPONDENT

­________________________________________________________

REASONS FOR ORDER

__________________________________________________

SMITH J:

[1] On 31 May 2012 I ordered the Respondent to pay the costs of the application on the attorney and client scale, and stated that my reasons will follow. These are my reasons.

[2] The Applicant obtained an urgent interdict, inter alia, prohibiting the Respondent from practicing as an attorney for his own account or in partnership, pending the issuing of the required Fidelity Fund Certificate (“the certificate”). The Respondent has in the meantime complied with the Applicant's requirements for the issuing of the certificate and the interim order has therefore lapsed automatically.

[3] Mr Wolmarans, who appeared for the Applicant, has applied for costs to be awarded on an attorney and client scale. Mr Moorhouse, for the Respondent, has however submitted that the latter has provided an acceptable explanation for his failure to submit the prescribed audit report required for the issuing of the certificate. He argued that the Respondent has established that he was not at fault in this regard and that he had taken all reasonable steps to ensure that the audit report was submitted, but that he had been let down by his auditor.

[4] An award of attorney and client costs is not only meant to punish the losing party. Such an award is justified where, in the view of the court, there are circumstances which gave rise to the litigation, or arising out of the conduct of the losing party, which would render it just and equitable, and necessary to ensure that the successful party is not out of pocket.

(Nel v Waterberg Landbouers Koperatiewe Vereniging 1946 AD 597 at 607; Fidelity Bank Ltd v Three Women (Pty) Ltd and Others [1996] 4 All SA 368 (W))

[5] It is indeed a serious matter for an attorney to practice for his own account, or in partnership without the prescribed certificate. The certificate provides comfort and security to clients that their attorneys’ affairs are in order, and that they would be indemnified in the event of financial misconduct by their attorneys. Clients who unwittingly instruct, and pay money to attorneys who practise without a certificate are at serious risk.

[6] Though I am not unsympathetic to the difficulties the Respondent may have experienced with his auditors, it still did not entitle him to practice without the prescribed certificate. He should have known this. Moreover, the Applicant had addressed several letters to him wherein it drew his attention to the relevant statutory provisions, and demanded that he ceased practice until such time as the certificate had been issued. He has simply ignored these letters, and has thus compelled the Applicant to bring this application. If he had acted responsibly and ethically it would not have been necessary for these proceedings to be brought in the first place.

[7] I was therefore of the view that his conduct was reprehensible, worthy of censure, and justified an award of costs on the attorney and client scale.

______________________

J.E SMITH

JUDGE OF THE HIGH COURT

Appearances

Counsel for the Applicant : Mr Wolmarans

Attorney for the Applicant : N. N Dulabh & Company

5 Bertram Street

GRAHAMSTOWN

6140

(REF: Mr Wolmarans)

Counsel for the Respondent : Advocate Moorhause

Attorney for the Respondent : G M Yeko Attorneys

(Ref: Mr Yeko)

Date Heard : 31 May 2012

Date Delivered : 15 June 2012