Law Society of the Northern Provinces v Burgers (70383/2010) [2010] ZAGPPHC 223 (7 December 2010)

NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(NORTH GAUTENG, PRETORIA)

CASE NO: 70383/2010

DATE: 07/12/2010

In the matter between:

THE LAW SOCIETY OF THE NORTHERN PROVINCES..................................Applicant

And

BAREND JACOBUS BURGERS.................................................................... ….Respondent

JUDGMENT

LEDWABA J:

[1] The applicant filed an urgent application against the respondent who has been practicing as an attorney for his own account since 1 July 1999. The order sought by the applicant is for the suspension of the respondent from practicing pending the final determination of the application to remove his name from the roll of attorneys.

[2] The respondent is opposing the application and has filed the opposing affidavit.

[3] The urgency in the matter is mainly based on the misappropriation of trust monies which the respondent does not dispute. The respondent's counsel in court conceded that the matter warrants to be dealt with in the urgent court despite the fact that in the opposing affidavit respondent made bare allegations that the applicant was irregular, unreasonable and unjust. He further submitted that the action (application) instituted was premature as the internal process has not been properly followed and his submission was not considered.

[4] I carefully read the contents of the respondent's opposing affidavit. He does not deal with the contravention levelled against him pertinently. However, he admits that his trust account was not correctly handled and that he contravened the rules of the Law

Society in that he, inter alia, failed to update his books regularly.

[5] The report of Mr. van Rooyen shows that there was some misappropriation of trust funds for the respondent's personal activities.

[6] What is of great concern is that the respondent submitted unqualified auditors reports for the past four years. How that was possible, in the light of the information in Mr. van Rooyen's report, raises more questions. This matter needs to be investigated further by the applicant. There is a great risk for the members of the public if the order sought is not granted.

[7] There have been some trust deficits in the respondent's trust account since 2005.

[8] I therefore, make the following order:

The draft order marked "A" is made an order of this court.

A. P. LEDWABA

JUDGE OF THE HIGH COURT

(NORTH GAUTENG HIGH COURT, PRETORIA)

Case No: 70383/2010

(Incorporated as the Law Society of the Transvaal)

and

BAREND JACOBUS BURGERS.........................................................................Respondent

COURT ORDER

Having read the papers filed of record and having heard the attorney for the Applicant,

IT IS ORDERED

1.1 In respect of Part A:

1.2 That BAREND JACOBUS BURGERS (hereinafter referred to as the Respondent) be suspended from practise as an attorney of the above

honourable court, pending the final determination of this application;

1.3 That respondent hands and delivers his certificate of enrolment as an attorney to the Registrar of this Honourable Court;

1.4 That in the event of the respondent failing to comply with the terms of this order detailed in the previous paragraph within two (2) weeks from the date of this order, the sheriff of the district in which the certificate is, be authorised and directed to take possession of the certificate and to hand it to the Registrar of this Honourable Court;

1.5 That respondent be prohibited from handling or operating on his trust accounts as detailed in paragraph 1.6 hereof;

1.6 That Johan van Staden, the head: members affairs of applicant or any person nominated by him, be appointed as curator bonis (curator) to administer and control the trust accounts of respondent, including accounts relating to insolvent and deceased estates and any deceased estate and any estate under curatorship connected with respondent's practice as an attorney and including, also, the separate banking accounts opened and kept by respondent at a bank in the Republic of South Africa in terms of section 78(1) of Act No 53 of 1979 and/or any separate savings or interest-bearing accounts as contemplated by section 78(2) and/or section 78 (2A) of Act No. 53 of 1979, in which monies from such trust banking accounts have been invested by virtue of the provisions of the said sub-sections or in which monies in any manner have been deposited or credited (the said accounts being hereafter referred to as the trust accounts), with the following powers and duties:

1.6.1 immediately to take possession of respondent's accounting records, records, files and documents as referred to in paragraph 1.7 and subject to the approval of the board of control of the attorneys fidelity fund (hereinafter referred to as the fund) to sign all forms and generally to operate upon the trust account(s), but only to such extent and for such purpose as may be necessary to bring to completion current transactions in which respondent was acting at the date of this order;

1.6.2 subject to the approval and control of the board of control of the fund and where monies had been paid incorrectly and unlawfully from the undermentioned trust accounts, to recover and receive and, if necessary in the interests of persons having lawful claims upon the trust account(s) and/or against respondent in respect of monies held, received and/or invested by respondent in terms of section 78(1) and/or section 78(2) and/or section 78(2A) of Act No 53 of 1979 (hereinafter referred to as trust monies), to take any legal proceedings which may be necessary for the recovery of money which may be due to such persons in respect of incomplete transactions, if any, in which respondent was and may still have been concerned and to receive such monies and to pay the same to the credit of the trust account(s);

1.6.3 to ascertain from respondent's accounting records the names of all persons on whose account respondent appears to hold or to have received trust monies (hereinafter referred to as trust creditors) and to call upon respondent to furnish him, within 30 (thirty) days of the date of service of this order or such further period as he may agree to in writing, with the names, addresses and amounts due to all trust creditors;

1.6.4 to call upon such trust creditors to furnish such proof, information and/or affidavits as he may require to enable him, acting in consultation with, and subject to the requirements of, the board of control of the fund, to determine whether any such trust creditor has a claim in respect of monies in the trust account(s) of respondent and, if so, the amount of such claim;

1.6.5 to admit or reject, in whole or in part, subject to the approval of the board of control of the fund, the claims of any such trust creditor or creditors, without prejudice to such trust creditor's or creditors' right of access to the civil courts;

1.6.6 having determined the amounts which he considers are lawfully due to trust creditors, to pay such claims in full but subject always to the approval of the board of control of the fund;

1.6.7 in the event of there being any surplus in the trust account(s) of respondent after payment of the admitted claims of all trust creditors in full, to utilise such surplus to settle or reduce (as the case may be), firstly, any claim of the fund in terms of section 78(3) of Act No 53 of 1979 in respect of any interest therein referred to and, secondly, without prejudice to the rights of the creditors of respondent, the costs, fees and expenses referred to in paragraph 1.3.1 of this order, or such portion thereof as has not already been separately paid by respondent to applicant, and, if there is any balance left after payment in full of all such claims, costs, fees and expenses, to pay such balance, subject to the approval of the board of control of the fund, to respondent, if he is solvent, or, if respondent is insolvent, to the trustee(s) of respondent's insolvent estate;

1.6.8 in the event of there being insufficient trust monies in the trust banking account(s) of respondent, in accordance with the available documentation and information, to pay in full the claims of trust creditors who have lodged claims for repayment and whose claims have been approved, to distribute the credit balance(s) which may be available in the trust banking account(s) amongst the trust creditors alternatively to pay the balance to the Attorneys Fidelity Fund;

1.6.9 subject to the approval of the chairman of the board of control of the fund, to appoint nominees or representatives and/or consult with and/or engage the services of attorneys, counsel, accountants and/or any other persons, where considered necessary, to assist him in carrying out his duties as curator; and

1.6.10 to render from time to time, as curator, returns to the board of control of the fund showing how the trust account(s) of respondent has/have been dealt with, until such time as the board notifies him that he may regard his duties as curator as terminated.

1.7 That respondent immediately delivers his accounting records, records, files and documents containing particulars and information relating to:

1.7.1 any monies received, held or paid by respondent for or on account of any person while practising as an attorney;

1.7.2 any monies invested by respondent in terms of section 78(2) and/or section 78 (2A) of Act No 53 of 1979;

1.7.3 any interest on monies so invested which was paid over or credited to respondent;

1.7.4 any estate of a deceased person or an insolvent estate or an estate under curatorship administered by respondent, whether as executor or trustee or curator or on behalf of the executor, trustee or curator;

1.7.5 any insolvent estate administered by respondent as trustee or on behalf of the trustee in terms of the Insolvency Act, No 24 of 1936;

1.7.6 any trust administered by respondent as trustee or on behalf of the trustee in terms of the Trust Properties Control Act, No 57 of 1988;

1.7.7 any company liquidated in terms of the Companies Act, No 61 of 1973, administered by respondent as or on behalf of the liquidator;

1.7.8 any close corporation liquidated in terms of the Close Corporations Act, 69 of 1984, administered by respondent as or on behalf of the liquidator; and

1.7.9 respondent's practice as an attorney of this Honourable Court,

to the curator appointed in terms of paragraph 1.6 hereof, provided that, as far as such accounting records, records, files and documents are concerned, respondent shall be entitled to have reasonable access to them but always subject to the supervision of such curator or his nominee.

1.8 That should respondent fail to comply with the provisions of the preceding paragraph of this order on service thereof upon him or after a return by the person entrusted with the service thereof that he has been unable to effect service thereof on respondent (as the case may be), the sheriff for the district in which such accounting records, records, files and documents are, be empowered and directed to search for and to take possession thereof wherever they may be and to deliver them to such curator.

1.9 That the curator shall be entitled to:

1.9.1 hand over to the persons entitled thereto all such records, files and documents provided that a satisfactory written undertaking has been received from such persons to pay any amount, either determined on taxation or by agreement, in respect of fees and disbursements due to the firm;

1.9.2 require from the persons referred to in paragraph 1.9.1 to provide any such documentation or information which he may consider relevant in respect of a claim or possible or anticipated claim, against him and/or respondent and/or respondent's clients and/or fund in respect of money and/or other property entrusted to respondent provided that any person entitled thereto shall be granted reasonable access thereto and shall be permitted to make copies thereof;

1.10 That if there are any trust funds available the respondent shall within 6 (six) months after having been requested to do so by the curator, or within such longer period as the curator may agree to in writing, shall satisfy the curator, by means of the submission of taxed bills of costs or otherwise, of the amount of the fees and disbursements due to him (respondent) in respect of his former practice, and should he fail to do so, he shall not be entitled to recover such fees and disbursements from the curator without prejudice, however, to such rights (if any) as he may have against the trust creditor(s) concerned for payment or recovery thereof;

1.11 That a certificate issued by a director of the Attorneys Fidelity Fund shall constitute prima facie proof of the curator's costs and that the Registrar be authorised to issue a writ of execution on the strength of such certificate in order to collect the curator's costs.

BY ORDER OF THE COURT

REGISTRAR