Law Society of the Northern Provinces v Aphiri (2015/11755) [2018] ZAGPPHC 361 (26 April 2018)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1) NOT REPORTABLE

(2) NOT OF INTEREST TO OTHER JUDGES

(3) REVISED.

Case Number: 2015/11755

26/4/2018

In the matter between:

THE LAW SOCIETY OF THE NORTHERN PROVINCES

Applicant

and

JOHN TSIETSI APHIRI

Respondent

JUDGMENT

MOKOSE AJ

INTRODUCTION

[1] This is an interlocutory application by the applicant calling for the respondent to discover, inter alia, the firm's complete accounting records for investigation .

[2] In pursuing the said relief, the applicant considered complaints which had been lodged relating to the misappropriation of trust funds by the respondent from an RAF settlement. The respondent disclosed some of the documents that the applicant required but some information had been blotted out making them illegible and of no assistance to the applicant.

[3] The respondent has persisted in his refusal to furnish the firm's accounting records, files and documents so as to enable the applicant

to determine the trust position of the respondent.

APPLICATION FOR CONSOLIDATION

[4] In limine, the respondent made an application to consolidate this application to compel discovery with the main application for the respondent's striking which matter has been set down for 24 April 2018 . The application for consolidation was filed in court and served upon the applicant on the morning of hearing of the application.

[5] The court considered the submissions made in respect of the application and concluded that the application be dismissed with costs on a scale as between attorney and client.

MERITS

[6] The respondent is a member of the applicant. As such he has an interest in ensuring that the standards·, reputation and integrity of the attorneys' profession are upheld and maintained.

[7] The applicant instructed Mr Swart, an employee, to conduct an investigation into the respondent's firm's accounting records and

practice after several complaints had been lodged with the applicant. Mr Swart reported that he had encountered difficulty in accessing the books of account and records of the respondent's firm. Over 10 (ten) attempts were made during January· and February 2014 to meet with the respondent but to no avail.

THE LAW

[8] Section 71(1) of the Attorneys Act 53 of 1979 ("the Act") provides that the Council of the Law Society may in the prescribed manner enquire into cases of alleged unprofessional, dishonourable or unworthy conduct on the part of any practitioner.

[9] Section 70(1) of the Act provides that the Council may, for the purposes of an enquiry in terms of Section 71(1) or in order to enable it to decide whether or not an enquiry should be held, direct any practitioner to produce for inspection, either by the Council which is in the possession or custody or under the control of such practitioner and which relates to his practice or former practice.

[10] Section 70(2) of the Act provides that the refusal or failure by a practitioner to comply with a direction in terms of Section 70(1)

constitutes unprofessional conduct.

[11] Section 78(4) of the Act provides that any practising practitioner shall keep proper accounting records containing particulars and information of any money received, held or paid by him for or on account of any person, of any money invested by him in a trust savings or other interest-bearing account and of any interest on money so invested which is paid over or credited to him.

[12] Section 78(5) of the Act provides that the Council of the Society of the province in which a practitioner practises may by itself or through its nominee and at its own cost, inspect the accounting records of any practitioner in order to satisfy itself that the provisions of Subsections (1), (2), (2A), (3) and (4) are being observed and, if on such inspection it is found that such practitioner has not complied with such provisions, the Council may write up the accounting records of such practitioner and recover the cost of the inspection or of such writing up, as the case may be, from that practitioner.

[13] Section 78(6) of the Act provides that the term "accounting records" includes any record or document kept by or in the custody or under the control of the practitioner which relates to the practice. Section 78(6)(d) makes it clear that the term "accounting records or document" under the custody and control of a practitioner, relating to his practice.

[14] It is evident from the papers before me that the respondent has completely failed to cooperate with the applicant pertaining to the furnishing of the firm's records . This refusal is in contravention of the provisions of the Attorneys Act.[1] It is expected that all attorneys give full and unconditional cooperation to the Law Society in the execution of its duties bestowed on it by the Attorneys Act.

[15] I am of the considered view that the respondent has failed to give his full cooperation with the applicant and has been obstructive in his conduct. In the premises the following order is granted:

(a) That the respondent makes the following documents available for inspection:

(i) the complete accounting records of the respondent's firm containing particulars and information of any money received, held or paid by the respondent for or on account of any person, of any money invested by the respondent in a trust savings or other interest bearing account and of any interest on money so invested which is paid over or credited to the respondent as is more fully described inn Section 78(4) of the Attorneys Act;

(ii) the complete office files relating to instructions handled by the respondent on behalf of his clients containing, without limiting the generality theeof, correspondence , statement of account, receipts, reports and pleadings relating to the instructions;

(iii) the complete and/or books, records or things relating to the practice of the respondent in relation to all matters handled by the respondent on behalf of clients as is more fully described in Section 70 of the Attorneys Act;

(iv) the records and information referred to in the applicant's founding affidavit to the main application and founding affidavit to this application either directly or indirectly to include but not limited to all matters in which the applicant has received complaints against the respondent.

(b) That the respondent pays the costs of this application on the scale as between attorney and client.

Acting Judge of the High

Court of South Africa

Gauteng Division,

PRETORIA

I agree and is so ordered

JANSE VAN NIEUWENHUIZEN J

Judge of the High Court of South

Africa Gauteng Division, Pretoria

For the Applicant:

Ms S Magardie instructed by

Damons Magardie Richardson Attorneys

For the Respondent:

Adv P J Coetsee instructed by

Aphiri Attorneys

Pretoria

Date of hearing: 17 April 2018

Date of judgment: 26 April 2018

[1] Act 53 of 1979