Law Society of the Northern Provinces v Jiyane (32887/2010) [2015] ZAGPPHC 854 (20 October 2015)

REPUBLIC OF SOUTH AFRICA

HIGH COURT OF SOUTH AFRICA

(GAUTENG PROVINCIAL DIVISION, PRETORIA)

CASE NO: 32887/2010

Not reportable

Not of interest to other Judges

20/10/2015

In the matter between:

THE LAW SOCIETY OF THE NORTHERN PROVINCES Applicant

and

SYLVESTER STEVENS JIYANE Respondent

JUDGMENT

MAKGOKA. J

Introduction

[1] This is an application by the Law Society of the Northern Provinces (the Law Society) to have the respondent's name removed from the roll of attorneys, as well as related ancillary relief. The respondent was admitted as an attorney of this court in March 2002. He practiced for his own account in Pretoria under the name of S.S Jiyane Attorneys until 14 September 2012 when he was suspended from practice by this court at the instance of the Law Society, pending the finalization of this application The Law Society alleges that the respondent has made himself guilty of several transgressions of its rules. However, the main complaint relates to the misappropriation of trust funds. The ancillary complaints concern practicing without being in possession of a valid fidelity fund certificate; failure to give proper attention to the affairs of his clients; failure to account to his clients and failure to keep proper books of accounts.

Application for a postponement

[2] Before I consider the merits of the application, I have to dispose of the respondent's application for a postponement. To consider the context of that application, I set out the following relevant background. The matter was initially heard in this court on 29 June 2010, when the Law Society obtained an order, on urgency, for the suspension of the respondent from practice as an attorney. Later, on 10 August 2010 that order was rescinded at the instance of the respondent. As part of the order of rescission, the respondent was ordered to supplement his papers, if he so desired, by 13 August 2010. The application was postponed to the urgent court on 24 August 2010. On that occasion, the matter was removed from the roll as the respondent had not filed his answering affidavit. The matter was re-enrolled for hearing on 13 October 2011, the notice of set down having been served on the respondent's attorneys on 12 October 2010.

[3] On 14 May 2011, the Law Society filed a supplementary founding affidavit. On 13 October 2011, the matter was postponed sine die, at the instance of the respondent. I pause here to mention that by then, the respondent had not delivered his answering affidavit.

The matter was postponed sine die and the respondent was ordered to deliver his answering affidavit within one month from the date of the order. The Law Society was also ordered to return the respondent's office files, which had been seized as part of the suspension order which was later rescinded. This was to enable the respondent to prepare his answering affidavit. The Law Society immediately thereafter informed the respondent that the files were ready for collection from its offices. However, the respondent did not respond to the invitation, and again, failed to file its answering affidavit as directed by this court.

[4] On 23 November 2011 the Law Society served a notice of set down on the respondent, enrolling the matter for 14 September 2012. On 3 April 2012 the Law Society filed its further supplementary affidavit. On 14 September 2012, the date of the hearing, the respondent had still not delivered his answering affidavit and requested a postponement for that purpose. The court acceded to his request for a postponement but suspended the respondent from practice, pending the finalization of the main application for the removal of the respondent's name from the roll of attorneys. The respondent was again afforded an opportunity to file his answering affidavit within 30 days from the date of the order.

[5] On 15 March 2013 the Law Society served a notice of set down on the respondent's attorneys, enrolling the matter for 10 September 2013. The respondent delivered his answering affidavit on 4 September 2013. At the hearing of the matter on 10 September 2013, the respondent delivered his supplementary answering affidavit. The matter was argued and judgment was reserved. On 20 September 2013, this court delivered its judgment. In terms of the order of the judgment, the respondent's suspension was extended and the Law Society was ordered to conduct and conclude its investigations into the respondent's professional affairs within 30 days of the judgment.

[6] On 19 November 2013, the Law Society delivered its further supplementary founding affidavit. On 4 December 2013, the Law Society

served a notice of set down on the respondent's attorneys, enrolling the matter for 9 May 2014, on which occasion the matter was postponed at the instance of the respondent for him to file a supplementary answering affidavit. The respondent was ordered to file such affidavit within 20 days from the date of the order. On 2 June 2014, the Law Society served a notice of set down on the respondent's attorneys, enrolling the matter for 22 August 2014. On 6 June 2014, the respondent delivered his supplementary replying affidavit. The Law Society delivered its supplementary replying affidavit on 9 July 2014, followed by a further supplementary founding affidavit on 7 August 2014.

[7] On 22 August 2014, the matter was postponed and in terms of the order, the Law Society was to deliver a further affidavit and the respondent was afforded the opportunity to respond to such affidavit. The Law Society delivered the further affidavit on 19 September 2014 and on 23 September 2014, served a notice of set down on the respondent's attorneys, enrolling the matter for 30 January 2015. On that occasion, 15 January 2015, the respondent requested a postponement to enable him to file an answering affidavit to the Law Society's affidavit referred to above. This court granted a postponement but noted it to be the 'final postponement.' On 10 February 2015, the Law Society served a notice of set down on the respondent's attorneys, enrolling the matter for 29 May 2015. This is how we are seized of the matter.

[8] A day before the hearing, on 28 May 2015, the respondent delivered an application for a postponement. The respondent says that due to lack of funds he has not been able to instruct legal representatives. As a result, he had decided to handle the application in person. However, he had been ill for some time before the date of hearing, having been diagnosed with bronchitis, and had been booked off. According to a medical certificate attached to his affidavit, the respondent was seen by a doctor on 27 May 2015 and certified to be unfit for work from 27 May 2015 until 29 May 2015 due to 'acute bronchitis.' As a result, there was no appearance for, or by, the respondent when the matter was mentioned. The application for a postponement was, in any event, opposed by the Law Society.

[9] In considering the application for a further postponement, one has to take into account the history of the matter as outlined above. The matter has been postponed on no less than three occassions, mostly at the instance of the respondent or because of him not having complied with an earlier court order. The respondent has more than been indulged by this court, with the result that it would not be in the interests of justice to postpone it further. There has to be finality to it. Without questioning the authenticity of the medical certificate relied on by the respondent, it is worth observing that while he was supposedly booked off sick from 27 May 2015, on the very same day, he was able depose to an affidavit in support of the application for postponement and travel to the city centre to have it signed and commissioned. If he was well enough to do so, I fail to understand how, two days later, he could not have drove to the city centre to attend court.

[10] Whatever the explanation there might be, it is over five years since this matter has first been on the roll. We have everything we need to dispose of the matter. The respondent does not say that he needs to raise any new matter, in addition to the thrust of his defence. Had that been the case, one might have been inclined to consider acceding to the request for a further postponement. The upshot of this is that the issues in dispute have been exhaustively canvassed in the papers thus far and that oral argument would account for very little of the outcome of the application. For these considerations, I am of the view that the application for a further postponement should be refused.

General principles and approach

[11] I shall turn to the merits of the application shortly. But before I do so, it is prudent to set out the applicable general principles and the broad framework within which this application has to be considered. The applications such as the present are sui generis and of a disciplinary nature. There is no /is between the Law Society and the respondent. The Law Society, as a custos morum of the attorneys' profession, places before court facts for consideration and an exercise of a discretion.[1]

[12] The question whether an attorney is no longer a fit and proper person to practice as such lies, in terms of section 22 (1) (d) of the Act, in the discretion of the court.[2] Once a court has determined that an attorney is no longer fit to remain on the roll of attorneys, the court must determine an appropriate sanction, namely a suspension from practice or striking from the roll. This determination also lies within the discretion of the court. The opinion or conclusion of the Law Society that a practitioner is no longer a fit and proper person to practice as an attorney carries great weight with the court, although the court is not bound by it.[3]

The factual background

[13] The genesis of the respondent's difficulties arose from his failure to submit an auditor's report in terms of rule 70 of the Law Society's rules. The report had to be submitted on or before 31 July 2009. When he appeared before the disciplinary committee of the Law Society for failing to submit the report, the respondent presented a copy of what appeared to be a proper rule 70 report, timeously submitted with the Law Society. After investigation, it transpired that the report had been falsified by a person who pretended to be an auditor. That individual was convicted of fraud relating to the falsified audit reports of a number of attorneys submitted to the Law Society, including that of the respondent.

[14] It is not suggested that the respondent was part of this falsification. However, the Law Society's point is that since the

respondent was informed of this falsification on 2 March 2011, he has not taken steps to rectify that situation and furnish the Law Society with a proper report. The audit report for 2009 is still outstanding. As a result, the respondent has not been issued with a fidelity fund certificate. It also needs mention that the respondent's audit reports for the years 2006, 2007 and 2008 were also found to have been falsified, with the result that, technically, the respondent had practiced for all those years with fidelity fund certificates issued on a fraudulent basis. The respondent acknowledges this fact and undertook to have his books audited and the relevant audit reports submitted to the Law Society. He has not done so.

Initial complaints against the respondent

[15] The Law Society also received several complaints from the respondent's erstwhile clients. The complaints have a monotonous

theme: the respondent received instructions and failed to execute them, despite being placed in funds by his clients. I detail those below.

(i) Mr Mohetloa complained that he instructed the respondent in April 2003 to assist him with the administration of his deceased father's estate and paid the respondent R30 000. After six years, the estate had not been wound up. The respondent failed to honour appointments made with Mr Mohetloa and avoided his telephone calls.

(ii) Mrs Thwala complained that she instructed the respondent during 2005 to handle her divorce matter and to transfer an immovable property into her name. She paid the respondent a deposit of RS 000. After the divorce, she paid the respondent a further R3 000. The respondent failed to attend to the instructions, and failed to account to Mrs Thwala. He also avoided her telephone calls.

(iii) Mr Shaba complained that he instructed the respondent in June 2009 in a litigation matter for unlawful arrest and paid the respondent R5 000. It is alleged that the respondent failed to handle the instructions properly as he failed to give feedback on the progress regarding his claim. According to Mr Shaba, the respondent also moved offices without informing him, as a result of which he was unable to ascertain his whereabouts and when he endeavoured contacting him telephonically, he was unsuccessful.

(iv) Mr Diphofa complained that he instructed the respondent to lodge a claim in terms of the Road Accident Fund and paid the respondent a deposit of R1 000. The respondent failed to account to Mr Diphofa in respect of the deposit or whether the claim had in fact been lodged.

(v) Mrs Sebothoma complained that she approached the respondent to assist her with the division of the farmer's joint estate after a divorce. She paid the respondent a R5 000 deposit. She never received any progress report from the respondent, nor accounting in respect of the deposit. She ultimately engaged another attorney to carry out her mandate.

(vi) Mr Mathabathe instructed the respondent to act for him in a criminal matter in October 2009 and paid him a deposit of R4 000. The respondent failed to neither carry out the instructions nor account to Mr Mathabathe for the deposit. The respondent also subsequently avoided him and failed to respond to his telephone calls and messages.

(vii) Mr and Mrs Seopa instructed the respondent during July 2004 to lodge a claim in terms of the Road Accident Fund and paid him R4 500. They complained that the respondent kept 'postponing without giving us the correct information.'

(viii) Ms Mokhine complained that she instructed the respondent to assist her with the administration of a deceased estate and paid a deposit of R2 000 to the respondent. She arranged an appointment with the respondent which the respondent failed to honour. She subsequently visited the offices of the respondent but found it locked. The respondent did not account to Ms Mokhine with regard to the feedback on progress nor the deposit paid.

Further complaints subsequent to the launching of the application

[16] Subsequent to the launching of the application in 2010, the Law Society received further complaints concerning the respondent.

(i) Ms Mere instructed the respondent during January 2012 to assist her with an application for guardianship for her two younger brothers who were under her care. She paid the respondent a R5 000 deposit and a further amount of R3000 later. According to Ms Mere, the respondent informed her that her application would be heard on 3 April 2012. When she went to court that day, the respondent did not attend court and since then, the respondent avoided her telephone calls. The respondent has failed to neither account to Ms Mere with regard to the monies received nor the progress in respect of the matter. Ms Mere wished the Law Society 'to assist me to trace (the respondent) as he has moved from the building he was practicing (at) and his cellphone numbers are not working anymore.'

(ii) Mr Mabunda complained that he instructed the respondent in 2007 to assist him with a labour matter. He paid the respondent R2 ODO.The respondent wrote a letter of demand to his former employer but since then, the respondent no longer communicated with him. He refused to take his calls and did not want to give him the case number under which his case was instituted, if any.

(iii) Ms Kungwane instructed the respondent to assist her regain ownership of a football club. She also instructed the respondent to institute an action for damages. She paid the respondent R20 000. According to Ms Kungwane, the respondent failed to execute her mandate and the matter became prescribed. The respondent has not accounted to Ms Kungwane for the amount of R20 000.

(iv) Ms Masombuka met the respondent at a magistrate court where the respondent was apparently 'looking for clients'. She instructed the respondent to apply for bail for her son and to handle the subsequent trial and paid him R3 000. Ms Masombuka complained to the Law Society that since paying the respondent, that was the last time she saw him and that 'he rejects (sic) my calls and my son is currently without a lawyer...'

The respondent's answer to the allegations

[17] The respondent's answer to the above allegations is unhelpful. He makes bald and unsubstantiated claims about matters having been settled with clients or having accounted fully to the clients. However, he attaches no single statement of account he had sent to any of his clients who lodged complaints with the Law Society. It is clear that his answers are based on memory rather than documentary evidence. He has only himself to blame in this regard as he had not availed himself of the invitation of the Law Society for him to uplift his files. It should be borne in mind that it was the respondent who stated that he needed his files (in the possession of the Law Society following his suspension) to enable him to prepare his answering affidavit. Despite efforts by the Law Society to have the respondent uplift the files, he has not done so.

Claims lodged with the Attorneys Fidelitv Fund

[18] According to the Law Society, twelve claims have been lodged with the Attorneys Fidelity Fund (the Fidelity Fund) based on misappropriation of trust funds by the respondent. The Fidelity Fund has admitted and paid nine of these claims in the total amount of R38 250. The particulars of the claims are these.

(i) Mr Mohale instructed the respondent in June 2008 in an estate transfer matter after his previous attorney had died. He paid R1000 to the respondent. The amount was received into the respondent's business account, instead of trust account, as required by the rules of the Law Society. According to Mr Mohale, the respondent did not execute the mandate and did not render any services to him, and neither did he account to him for the R1 000.

(ii) Ms Nkomo also paid R3 000 to the respondent for him to act for her in a property related matter. The deposit slip shows that the amount was received into the respondent's personal savings account, instead of the practice's trust account. According to Ms Nkomo, the respondent did not execute her mandate but retained the R3 000, for which the respondent did not account to her.

(iii) Ms Raphiri instructed the respondent in a bail application on behalf of her sibling. She paid R3 000 to the respondent. This money was also received into the business account. According to Ms Raphiri, the bail application was enrolled for 16 July 2010 but the respondent failed to attend the proceedings. She did not receive any accounting from the respondent of the deposit she paid to him.

(iv) Mr Tchabelle instructed the respondent in a criminal matter with specific instructions to lodge an appeal. He paid the respondent a total of R10 000 but only received receipts for R9 000. Five of the deposits were received into the respondent's business practice, and the sixth one, received on 19 November 2009, does not reflect whether it is trust or business receipt.

(v) Mr Rametsi instructed the respondent to represent his brother in a criminal matter and paid him a RS 000 deposit, also paid into the practice's business account. The respondent failed to attend court proceedings on three occasions when the matter was on the roll. The respondent, therefore, never rendered any services for which he was paid.

(vi) Ms Msimango instructed the respondent to assist her in a custody matter. She paid him a deposit of R3 750 in two installments, one for R750, which did not reflect whether it was received into trust or business account and the one for R3 000 was received into the business account. The respondent advised her that the matter would be heard in court on 11 March 2011. Thereafter the respondent did not communicate with Ms Msimango. Later, the respondent advised her that the hearing had been 'cancelled'. Ms Msimango therefore complained that she did not receive any services from the respondent, despite paying R3 750.

(vii) Ms Pape instructed the respondent to act on her behalf in a divorce matter and paid the respondent a deposit of R4 500 in five installments, of which one payment was received into the business account, while the rest, it is not clear whether they were received into the trust account. Ms Pape says that no services were rendered to her and she claimed her money back from the Fidelity Fund.

(viii) Mr Lekalakala instructed the respondent to act for him in an appeal during November 2007. He paid a total sum of R6 000 to the respondent. None of the receipts issued to him reflect that the monies were received into the trust account. The respondent failed to execute his mandate. Mr Lekalakala was unable to obtain his file from the respondent's office. During October 2008, the respondent undertook to repay Mr Lekalakala his deposit. However, the respondent only repaid R1 000 during December 2008 and failed to account to Mr Lekalakala in respect of the rest of the money.

(ix) Mr Shaba instructed the respondent in a litigation matter in June 2009 against the Minister of Police. He paid a deposit of R5 000 to the respondent in nine installments. Four of the receipts reflect that the monies were received into the business account and the rest do not indicate on the receipts whether they were business or trust receipts. Apart from two letters - on requesting payment of deposit and another one advising that the matter was being attended to - Mr Shaba heard nothing further from the respondent.

[19] The respondent has not answered to the above allegations, despite being ordered by this court on 22 August 2014 to do so. On that occasion, the court granted a postponement and ordered the Law Society to expand on and explain its statement in its supplementary

founding affidavit that there had been claims against the Fidelity Fund arising from the respondent's handling of trust monies. The Law Society was ordered to file an affidavit dealing specifically with that aspect which was to be filed on or before 22 September 2014 and the respondent was ordered to file his answering affidavit in that respect, on or before 22 October 2014. The Law Society delivered the affidavit on 19 September 2014. The respondent did not comply with the court order and, to date, that answering affidavit has not been filed.

Discussion

[20] From the above, the following conclusions can be drawn about the respondent's conduct. He received trust monies into his business

account (in one instance into his personal savings account) instead of trust account; he failed to give diligent and prompt attention to the affairs of his clients; he failed to account to his clients for the monies received on their behalf in trust; he failed to advise his clients of progress in their matters; he failed to reply to communication from his clients. Most importantly, the respondent has misappropriated trust funds, as evidenced by the claims against and payment by, the Fidelity Fund.

[21] All these point to the inescapable conclusion that the respondent is no longer fit to remain on the roll of attorneys. He has shown himself not to be a fit and proper person to be on the roll of attorneys. Whether taken severally or cumulatively, the respondent's

conduct is inconsistent with membership on the roll of attorneys. What remains to be determined is the sanction to be imposed on the respondent - whether to remove him from the roll or simply extend his suspension for a definite period.

Appropriate sanction

[22] Once a court has determined that an attorney is no longer fit to remain on the roll of attorneys, the court must determine an appropriate sanction, namely a suspension from practice or striking from the roll. This determination also lies within the discretion of the court. The opinion or conclusion of the Law Society that a practitioner is no longer a fit and proper person to practice as an attorney carries great weight with the court, although the court is not bound by it: Kaplan v Incorporated Law Society, Transvaal.[4]

[23] The application requires a three-stage enquiry. First, the court must decide whether the alleged offending conduct has been established on a preponderance of probabilities, which is factual enquiry. Second, it must consider whether the person concerned is 'in the discretion of the court' not a fit and proper person to continue to practice. This involves a weighing-up of the conduct complained of against the conduct expected of an attorney and, to this extent, is a value judgment. And third, the court must enquire whether in all the circumstances the person in question is to be removed from the roll of attorneys or whether an order of suspension from practice would suffice. See Law Society, Northern Provinces v Mogami and Others.[5]

[24] In Summerley v Law Society, Northern Provinces.[6] the court explained the test to be applied during the third stage of the enquiry as follows:

'The third enquiry again requires the Court to exercise a discretion. At this stage the Court must decide, in the exercise of its discretion, whether the person who has been found not to be a fit and proper person to practice as an attorney deserves the ultimate penalty of being struck from the roll or whether an order of suspension from practice will suffice.'

[25] In my view, the transgressions by the respondent are very serious indeed. What is more, the respondent has manifested a character

defect, exhibited by lack of insight, candour and sincerity. Our courts have over the years emphasized that if one of the transgressions involve an element of dishonesty, the sanction of removal from the roll is usually visited upon an attorney. This is such a trite and well-settled proposition that it hardly needs any citation of the authorities but was recently confirmed in Law Society of the Northern Provinces v Mabaso,[7] In all circumstances, Itake the view that the only sanction I deem suitable under the circumstances, is the removal of his name from the roll of attorneys.

Costs

[26] There remains the issue of costs. In matters such as these, policy considerations are that the Law Society, as the custos morum of the attorneys' profession, should not be burdened with legal costs when launching applications against attorneys who have made

themselves guilty of dishonourable, unworthy or professional conduct. A practice has therefore developed on that basis that costs are granted on an attorney and client scale. The Law Society has requested such a cost order. I see no reason why it should not be granted.

Order

[27] In the result the following order is made:

1. The name of SYLVESTER STEVENS JIYANE (the respondent) is removed from the roll of attorneys of this court.

2. Paragraphs 2 and 3 inclusive, of the draft order attached hereto and marked "A" are made part of the order of this court.

___________________

TM Makgoka

Judge of the High Court

I agree

[1] See generally, Hassim v Incorporated Law Society of Natal 1977 (2) SA 757 (A) at 767 C-G; Law Society, Transvaal v Matthews 1989 (4) SA 389 (T) at 393E; Cirota & Another v Law Society, Transvaal 1979 (1) SA 172 (A) at 187 H and Prokureursorde van Transvaal v Kleynhans 1995 (1) SA 839 (T) at 851E-F.

[2] Law Society of the Good Hope v Budricks 2003 (2) SA 11 (SCA).

[3] Kaplan v Incorporated Law Society, Transvaal 1981 (1) SA 762 (T) at 781H.

[4] Kaplan v Incorporated Law Society, Transvaal 1981 (1) SA 762 (T) at 781H.

[5] [2010] 1 All 315 (SCA) para 14.

[6] [2006] SCA 59 (RSA) para 2.

[7] Law Society of the Northern Provinces v Mabaso (20252/14) [2015] ZASCA 109 (21 August 2015)