Law Society of the Cape of Good Hope v Qoboshiyane (175/2013) [2013] ZAECGHC 35 (18 April 2013)

5

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

Case no: 175/2013

Date Heard: 22/03/13

Date Delivered: 18/04/13

In the matter between:

THE LAW SOCIETY OF THE CAPE OF GOOD HOPE .......................APPLICANT

Versus

QAQAMBILE FRANKLIN QOBOSHIYANE .................................RESPONDENT

Coram: Smith J and Roberson J

JUDGMENT

SMITH J:

Introduction

The Applicant seeks an order striking the Respondent from the roll of attorneys and for consequential relief relating, inter alia, to the surrendering of his books of account and future conduct of his practice.

The Respondent was admitted as an attorney on 19 September 2002 and thereafter practiced as a professional assistant with Nduli and Company in East London until 31 January 2004.

He practiced as an associate with Z.E Frans attorneys from 1 February 2004 until 14 February 2005, after which he practiced for his own account until 30 June 2006.

He thereafter joined the Legal Aid Board, Kimberly Justice Center where he practiced as a professional assistant until 23 April 2008. From 6 May 2008 he joined the University of Fort Hare Legal Aid Clinic in the same capacity.

Between 30 March 2008 and 22 June 2009 the Respondent was fined a total of R35 000 by the Applicant in respect of 14 counts of misconduct which ranged from, inter alia, failure to: submit an audit report timeously; reply to the Applicant’s correspondence, carry out client’s mandate within a reasonable period of time; and to account accurately and timeously to clients.

The allegations of misconduct against the Respondent relate to:

(i) the misappropriation of trust funds;

(ii) administering trust funds in a reckless and cavalier manner and without any regard to his duties as an attorney;

(ii) unprofessional, dishonorable and unworthy conduct and bringing the profession into disrepute; and

(iv) manifesting character defects and lack of integrity.

The Applicant contends that the Respondent has thus shown himself to be unfit to continue to practice as an attorney.

The application was precipitated by a number of complaints which the Applicant had received from the Respondent’s former clients. The Applicant’s replying affidavit also contains several allegations of serious misconduct on the part of the Respondent after the launch of these proceedings. Although the Respondent opposed the proceedings and filed an answering affidavit, he was not represented at the hearing of the matter. Mr Brooks appeared for the Applicant.

The Cwaba Complaint

On 9 December 2005 the Applicant received a complaint from one Mrs Nomonde P Cwaba to the effect that during September 2005 she

instructed the Respondent to obtain a title deed and had paid him the sum of R950 as fees. The Respondent however failed to provide

the title deed despite numerous promises to do so. He thereafter disappeared and she eventually established that he did not have an office but was working from his motor-vehicle.

The Applicant forwarded a copy of Mrs Cwaba’s letter to the Respondent on 15 December 2005, and requested him to provide an explanation. He however failed to respond. It was only after the Applicant had sent him another reminder on 17 March 2006 that he responded, claiming, inter alia, that:

(i) he was unable to handle the matter properly because he had been involved in a serious motor-vehicle accident;

(ii) his staff members had “mishandled” monies which were paid into his trust account; and

(ii) there had been a breakdown of communication between him and his client, and he would arrange an appointment with her to finalise the matter.

Despite this undertaking the Respondent did not take any steps to address Mrs Cwaba’s complaint, and on 5 June 2006 the Applicant received another letter from Mrs Cwaba stating that the Respondent had failed to contact her. The Applicants thereafter addressed further letters to the Respondent on 18 September 2007 and 19 November 2007. The Applicant did however again not respond to any of them.

On 18 March 2008 Mrs Cwaba again wrote to the Applicant stating that the Respondent had arranged to meet her at the Mdantsane Taxi Rank but had failed to show up for the appointment. The Applicant thereafter addressed further letters to the Respondent on 3 June 2008 and 8 August 2008 to which he again failed to respond.

The Respondent said the following regarding Mrs Cwaba’s complaint in his answering affidavit:

(i) the amount of R950 was a reasonable fee for the work he had done. His fees had also never been referred for taxation by the Applicant;

(ii) he had never admitted that Mrs Cwaba’s funds had been mishandled by his staff but had merely explained the reasons for the delay in finalising the transfer; and

(ii) the dispute between him and Mrs Cwaba was caused by her inability to understand that she had paid the amount of R950 in respect of work already done, and had to pay a further sum of R2000 in respect of conveyancing fees. He therefore denied that he had misappropriated

her monies.

The Esaya Complaint

On 5 July 2006 the Applicant received another written complaint from one of the Respondent’s former clients, Mr Harold Mbuyiseli

Esaya, to the effect that:

(i) an amount of R45 000 was paid into the Respondent’s trust account by the Road Accident Fund (“the RAF”) in respect of a claim which the Respondent was handling on his behalf;

(ii) Mr Esaya was unable to get hold of the Respondent and only learnt of the settlement when he visited the RAF offices.

(iii) on 6 March 2006 the Respondent gave him a cheque in the amount of R22 500. He also told Mr Esaya that he would receive the balance by 30 April 2006. The Respondent had previously advised Mr Esaya that he would deduct 25% of the settlement amount for fees, but subsequently told him that he would withhold 32%. Mr Esaya thereafter made several unsuccessful attempts to get hold of the Respondent.

The Applicant wrote to the Respondent on 11 July 2006 requesting him to reply to Mr Esaya’s complaint. When the Respondent failed to reply, the Applicant wrote to him again on 15 August 2006, 13 October 2006, 23 September 2008 and 5 December 2008. The Respondent did however also not reply to any of these letters.

The Applicant contends that the Respondent has therefore failed to properly account to Mr Esaya in respect of his claim as he is obliged to do in terms of its rules. It contends further that even if the Respondent had been entitled to 25% of the settlement amount in terms of a contingency fee agreement, he would still have been obliged to pay an amount of R33 750 to Mr Esaya. He had therefore misappropriated, at the very least, the sum of R11 250.

The Respondent stated the following in his answering affidavit regarding Mr Esaya’s complaint:

(i) he had advised Mr Essaya about the payment from the RAF telephonically. He had also told him that he would prepare his bill

of fees in respect of the balance. His account was however “a bit higher” than the money in his possession and he therefore

did not pay any further monies to Mr Esaya;

(ii) Mr Esaya accepted that the balance in his Trust account was utilised for fees and disbursements;

(iii) he denies that he had any contingency fee agreement with Mr Esaya to deduct either 25% or 32% from the amount paid by the RAF. He was however entitled to charge fees and disbursements on the attorney and client scale.

The Mekeni Complaint

On 6 July 2006 the Applicant also received a written complaint from Mrs N. P Mekeni. She alleged that she had instructed the Respondent to prosecute an appeal on her behalf, and had paid him an amount of R5 000 as fees on 8 September 2005. The Respondent however

failed to carry out her mandate. She was unable to get hold of him, or to obtain a refund of the monies she had paid to him.

The Applicant forwarded a copy of Mrs Mekeni’s complaint to the Respondent on 7 July 2006 and requested him to provide an

explanation. When he failed to respond, the Applicant wrote to him again on 4 August 2006, 1 September 2006, 10 January 2008 and 19 February 2008. The Respondent did however not reply to any of these letters.

Because the Respondent had failed to provide the Applicant with a forwarding address, it was compelled to launch an investigation to determine his whereabouts. After it had located the Respondent, the Applicant again wrote to him on 7 May 2008, 3 June 2008, 13 June 2008 and 14 July 2008. He eventually only responded on 22 August 2008 claiming, inter alia, that:

(i) he had advised Mrs Mekeni of his fees and requested her to pay a further sum of R1 000 in addition to the R5 000;

(ii) he had consulted with her on three different occasions, had gone to the Butterworth Magistrates’ Court to obtain the trial record, and had advised her that he would consult with her in Butterworth instead of East London in order to save costs; and

(iii) he therefore does not owe Mrs Mekeni any money.

The Applicant was however not satisfied with the Respondent’s explanation, being of the view that the Respondent was unable to substantiate his claims that he had rendered services justifying the fees that he had charged Mrs Mekeni. It therefore again wrote to him on 6 March 2009 and 30 April 2009 requesting a further explanation. The Respondent did however again not reply to any of these letters. The Applicant contends that the Respondent had therefore failed to properly account to Mrs Mekeni in respect of his fees, or to carry out his mandate in respect of the appeal, and has therefore misappropriated the sum of R5 000.

The Respondent replied as follows to Mrs Mekeni’s assertions in his answering affidavit:

(i) he admitted that she had paid him a sum of R5 000 for fees. His account in respect of consultations and travelling to and from Butterworth and Mthatha however exceeded that amount;

(ii) he had told her that he required additional funds to move the application for leave to appeal;

(iii) when she complained about his fees he referred her to the Applicant;

(iv) he denied that it was necessary for the Applicant to launch investigations to establish his whereabouts, as it had been duly

informed when he took up employment in Kimberly and at the University of Fort Hare; and

(v) he also denied that the letters of 7 May, 3 June and 13 June were ever sent to him. He stated that he did in any event not receive any of these letters.

The Simanga Complaint

On 3 October 2007 the Applicant received another written complaint from Mr M.N Simanga to the effect that he: had instructed the Respondent to represent him in a labour dispute; had paid him a sum of R11 000 as fees; but the Respondent however disappeared without carrying out his mandate.

The Applicant forwarded a copy of Mr Simanga’s letter to the Respondent on 10 October 2007, and requested him to provide an explanation. He however failed to respond and the Applicant wrote to him again on 16 November 2007 and 27 November 2007, reminding him about the matter.

He eventually only responded on 6 December 2007 claiming, inter alia, that:

(i) Mr Simanga had instructed him to claim pension monies from his employer. They had agreed that 25% of the entire amount recovered

would be deducted in respect of his fees. When the matter was finalised Mr Simanga had paid the money to him in terms of the agreement, and his mandate was therefore finalised on this basis;

(ii) Mr Simanga had also instructed him to take over a labour matter which was being handled by another firm of attorneys, but he declined;

(ii) Mr Simanga then gave him further instructions to query the amount of pension monies paid to him. He however told him that those were new instructions and he would have to pay additional fees as the previous matter had been finalised. He therefore does not owe Mr Simanga any money as the amount of R11 000 was paid to him in respect of instructions which he had carried out successfully.

The Applicant forwarded the Respondent’s written response to Mr Simanga, who denied that he had instructed the Respondent to claim pension funds on his behalf. He insisted that his pension monies had been paid to him during 2004, and he annexed the letter from the National Treasury advising him that an amount of R74 412. 54 would be paid into Mr Simanga’s account. He stated further that the amount of R11 000 was paid to the Respondent in respect of instructions to claim overtime and leave monies due to him. He also denied that he had instructed another firm of attorneys to handle the labour dispute on his behalf, but rather to claim his money from the Respondent.

When he was given an opportunity to reply to Mr Simanga’s letter, the Respondent claimed that he and Mr Simanga had concluded a contingency fee agreement, but that he had been unable to locate a copy thereof. Despite an undertaking to provide the Applicant with the copy of the said agreement as soon he was able to locate it, he had failed to do so.

The Applicant thereafter wrote to the Respondent again on 19 March 2008 and 22 April 2008 reminding him about his undertaking to provide a copy of the contingency fee agreement. He however failed to respond to any of these letters. After again having had to launch an investigation to determine the Respondent’s whereabouts, the Applicant wrote to him on 7 May 2008 and 30 May 2008 reminding him about the matter. On 3 June 2008 the Respondent wrote to the Applicant requesting copies of the letters which had been previously dispatched to him. Despite the fact that these were sent to him on 9 June 2008 he again failed to reply.

It was only after the Applicant had sent him another reminder on 10 July 2008 that the Respondent wrote to the Applicant on 20 August 2008 advising it that the matter had been settled with Mr Simanga’s attorneys.

It appears however that the Respondent was being disingenuous in this regard as well, because on 17 September 2008 the Applicant received a letter from Mr Simanga’s attorneys advising it that the Respondent had signed an acknowledgment of debt in terms of which he had undertaken to pay Mr Simanga R500 per month. The offer of settlement was subsequently made an order of court. The Respondent however failed to pay the first installment and the attorneys had consequently issued a garnishee order.

The Applicant subsequently wrote to the Respondent again on several occasions between 22 September 2008 and 30 April 2009, but again did not receive any reply from the Respondent.

The Applicant contends that by signing an acknowledgment of debt the Respondent had effectively admitted that he owes Mr Simanga the amount of R11 000. He has therefore failed to properly account to Mr Simanga in respect of these monies in terms of its Rules. He has also failed to carry out his mandate and has accordingly misappropriated the sum of R11 000 paid to him by Mr Simanga. The Applicant furthermore contends that the Respondent has attempted to conceal the misappropriation of the monies by deliberately providing the incorrect information regarding his mandate. In addition, the Respondent’s trust banking account statement for the period 22 August 2007 to 7 January 2008 indicates that, as at 4 January 2008, his trust account was overdrawn in the amount of R338. 41.

The Respondents said the following in his replying affidavit regarding Mr Simanga’s allegations:

(i) he had represented Mr Simanga in respect of a claim for pension monies and leave gratuity which had been delayed by his employers.

They had agreed on a lump sum payment of R11 000 for fees;

(ii) his file subsequently “got misfiled” when he closed his office. He had in any event finalised Mr Simanga’s claim by then, and there was therefore no reason for him to keep the file; and

(iii) being unable to trace the file he was under pressure from Mr Simanga’s attorneys to sign the acknowledgment of debt. He however subsequently felt that he had been abused and therefore refused to pay the installments.

Allegations of misconduct in the Applicant’s replying affidavit

The Applicant has averred in its replying affidavit that the Respondent committed the following serious acts of misconduct after these proceedings were launched:

(i) on 19 September 2010 the Sunday Times published an article alleging that the Respondent, at the time when he was not entitled to represent clients, consulted with one Ms George and requested her to pay him a deposit of R1 000 to enable him to institute a compensation claim against the RAF. These allegations were confirmed by Ms George in a supplementary affidavit;

(ii) on 17 March 2011 the Respondent received another written complaint from one Mr Morapela to the effect that he had been requested by the Respondent to pay an amount in excess of R64 000 to defend him in a civil matter. At the time the Respondent held out that he was employed by MM Heshula Attorneys, when he was in fact not so employed. He was also not in possession of a fidelity fund certificate, and was therefore in any event not entitled to practice as an attorney;

(iii) on 22 October 2010 the Applicant received a complaint from the Law Society of the Northern Provinces to the effect that it had received two reports which indicate that the Respondent had on two different occasions represented litigants at the East London Magistrates’ Court. He allegedly again claimed to have been employed by Heshula attorneys;

(iv) Mr B J Van Rensburg, an attorney practicing as a partner at Van Rensburg and Associates, wrote to the Applicant on 1 October 2010 requesting it to advise whether the Respondent was employed by a law firm as he had represented clients in court; and

(v) Mr MM Heshula, an attorney practicing for his own account as MM Heshula attorneys in East London, has filed a confirmatory affidavit

wherein he stated that the Respondent had never been employed by his firm, that he had forged his firm’s letterhead and had

unscrupulously used it for financial gain.

The Law

[35] In terms of s. 22(1)(d) of the Attorneys Act, 53 of 1979 (“the Act”):

“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 practices, if he, in the discretion of the court, is not a fit and proper person to continue to practice as an attorney.”

[36] In bringing evidence of a practitioner’s alleged misconduct to the Court’s attention, a Law Society acts under a public duty in the interests of the Court, the profession and the public at large (Law Society of the Transvaal v Meyer and Another 1983 (2) SA 505 (T)).

[37] The test as to whether or not an attorney is a fit and proper person to practice is an objective one and the Court “after considering the facts and hearing argument, decides on a balance of probability whether the respondent’s alleged offending conduct or acts have been established and, if so, whether they show that, by reason of his character or otherwise, the respondent is or is not a fit and proper person to practice as an attorney” (Nyembezi v Law Society Natal 1981 (2) SA 752 (A) at 756H-757A. See also: Law Society Transvaal v Behrman 1981 (4) SA 538 (AD).

[38] In the exercise of its judicial discretion the Court must have due regard to the views expressed by the applicant but is not bound by it. (Law Society, Cape v Koch 1985 (4) 379 (CPD) at 386G-H)

[39] The obligation imposed upon attorneys in terms of s. 78 of the Act, to maintain proper books of account, including a separate trust account and to pay all trust monies in the trust account is a serious one and a contravention thereof, apart from contravening the law, renders ineffective the protection which the statutory scheme provides to trust creditors. (Cape Law Society v Mda 1971 (2) SA 201 (C) at 204; Law Society Cape v Segall 1975 (1) SA 95 (C) at 98).

[40] It is trite law that where in motion proceedings genuine and bona fide disputes of facts arise, they must be resolved on the facts averred by the respondent together with the admitted facts put up by

the applicant. (Plascon Evans Paints Ltd v Van Riebeeck Paints (PTY) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634E-I).

[41] Where the version put up by the respondent is far-fetched or uncreditworthy, a court may reject it out of hand without referring

the matter for viva voce evidence. (National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA) at 290E-F).

Discussion

[42] Mr Brooks has, in my view, correctly submitted that the manner in which the Respondent has dealt with the allegations against him are most unsatisfactory. Instead of responding to the substance of the allegations against him the Respondent has resorted to adopting a

tone which was on occasions unjustifiably truculent and at times even petulant. His affidavit also contains broad-sweeping allegations

against the Applicant, namely that it is malicious, had made “scandalous conclusions” and “perpetuating a bad image about attorneys in the public domain”. He does however not provide any factual bases for these serious allegations.

[43] He provided no acceptable explanation for his failure to reply to various letters addressed to him by the Applicant, and appeared to have been deliberately vague in his assertions that the fees that he had charged clients were reasonable under the circumstances. His explanation as to why he had been compelled to admit indebtedness in respect of monies paid to him by Mr Simanga was also unconvincing. Mr Brooks correctly submitted that by signing the acknowledgment of debt the Respondent had effectively admitted that he was unable to justify his fees.

[44] In the result we are satisfied that the Applicant has been able to establish, on a balance of probabilities, that the Respondent: had accepted money from clients in respect of mandates which he had failed to carry out; failed to properly account to clients as he was required to do in terms of the rules of the Applicant; has misappropriated client’s monies; and has administered his trust funds in a reckless and cavalier manner and without any regard to his duties as an attorney.

[45] The further allegations of misconduct contained in the Applicant’s replying affidavits constitute even more serious breaches of the Respondent’s statutory obligations as a legal practitioner. In our view it matters not that they were introduced in the replying papers. The Applicant was obliged to bring further allegations of misconduct to the Court’s attention at any stage of the proceedings. The Respondent has not attempted to file a further affidavit to deal with these allegations. We are not surprised by his failure to do so. These allegations are supported by objective and independent evidence, and are seemingly incontrovertible.

[46] The Respondent has on numerous occasions in his answering affidavit asserted that he was employed as an Associate by Heshula Attorneys. It however appears that he has deliberately and dishonestly misled the Court in this regard. The principal of that firm, Mr Heshula, has filed a confirmatory affidavit wherein he not only denied that the Respondent had ever been employed by his firm, but also stated that the Respondent had forged his firm’s letterhead. Moreover, the Respondent appeared to have duplicitously held out to members of the public that he was a practicing attorney, and attempted to induce them to instruct him to represent them, and to pay him substantial sums of money.

[47] All of this occurred after the Applicant had launched proceedings for his name to be struck from the roll of attorneys. He has thus acted not only with total disdain and reckless disregard of his statutory obligations as an attorney, but also with arrogant indifference as to the consequences of his actions.

[48] The standard set for an attorney is a high one. In Incorporated Law Society, Transvaal v Visse and others; Incorporated Law Society, Transvaal v Viljoen 1958 (4) SA 115 (T) Boshoff said the following in this regard (at 131):

“..the Court admits an attorney to the profession and he is put in a position to conduct matters of trust with the public. He occupies a position of great confidence and power and the Court is entitled to demand a very high standard of honour from him in the profession. The law exacts from him uberrima fides where he acts as agent for others; that is the highest possible degree of good faith. It is, therefore, essential that the public should be able to rely implicitly on the integrity and good faith of any attorney they may wish to employ. If the court, having regard to all the circumstances brought before it, is no longer justified in regarding an attorney as a fit and proper person to be entrusted with the important duties and grave responsibilities which belong to an attorney, it should either remove him from the roll of attorneys or suspend him from practice. For the sake of the public, and no less the profession, it is of the utmost importance to enforce on all attorneys the high standard of duty which rests upon them and demand the great integrity which is expected of them.”

The Respondent’s conduct not only falls far short of these high standards, but also evinces a serious flaw in his character which in our view renders him unfit to practice as an attorney.

[49] On the facts before us, we have no doubt that he is not a fit and proper person to practice as an attorney. This is however not the end of the inquiry. Removal from the roll of attorneys does not necessarily follow upon a finding that a person is not fit and proper to continue to practice as an attorney. In Malan and Another v Law Society Northern Provinces [2008] ZASCA 90; 2009 (1) SA 216 (SCA) Harms ADJP (at paragraph 8) stated that:

“…the Act contemplates a suspension. This means that removal does not follow as a matter of course. If the Court has grounds to assume that after the period of suspension the person will be fit to practice as an attorney in the ordinary course of events it would not remove him from the roll but order an appropriate suspension.”

[50] In this regard section 22 of the Act contemplates a three stage inquiry. In Jasat v Natal Law Society 2000 (3) SA 44 (SCA) Scott JA formulated the applicable legal principles as follows (at paragraph 10):

(a) the first stage of the inquiry is for the Court to establish whether the alleged offending conduct had been established on a balance of probabilities;

(b) the second inquiry is whether the person concerned is in the discretion of the Court a fit and proper person to continue to

practice;

(c) the third inquiry is whether in all the circumstances a person concerned is to be removed from the roll of attorneys or whether an order suspending him from practice for a specified period would suffice.

The learned judge further stated that where an element of dishonesty is present, there must be exceptional circumstances before a Court will order suspension instead of removal from the roll.

[51] In our view there are no such exceptional circumstances present in this matter and suspension is therefore clearly not an option. The acts of misconduct committed by the Respondent are egregious and indicative of a total disregard for his statutory obligations as an attorney. We are therefore left with no doubt that he is a danger to the public and that it is in the best interests of the profession, the Court and the public, that his name is struck from the roll of attorneys.

[52] In the result an order shall issue in terms of paragraphs 1 to 12 of the Applicants’ Notice of Motion.

_________________________

J.E. SMITH

JUDGE OF THE HIGH COURT

I agree.

_______________________­­__

J. M. ROBERSON

Appearances

Counsel for Applicant : Advocate Brooks

Attorney for the Applicant : Neville Borman and Botha

22 Hill Street

GRAHAMSTOWN

6140

Ref: Ms Carinus/ Cornelia

Tel: 046 622 7200

Counsel for the Respondent : No Appearance

: Makhanya Inc.

17 Athur Street

King Williams Town

5600

Date Heard : 22 March 2013

Date Delivered : 18 April 2013