Law Society of the Northern Provinces v Mabaso (67671/2010) [2013] ZAGPPHC 483 (20 December 2013)

IN THE NORTH GAUTENG HICH COURT OF PRETORIA

(REPUBLIC OF SOUTH AFRICA)

CASE NO: 67671/2010

DATE: 20 DECEMBER 2013

In the matter between:

LAW SOCIETY OF THE NORTHERN PROVINCES.............................APPLICANT

And

CHRISTOPHER MABASO ….............................................................RESPONDENT

JUDGMENT

TWALA, AJ

1. This is an application brought by the Applicant for the striking of the name of Christopher Mabaso from the roll of attorneys of this Court. The Applicant prays also for the ancillary relief as listed in the Notice of Motion. The Respondent is an attorney and a member of the Applicant who is enrolled to practise within the jurisdiction of this Court.

2. On the 2 December 2011 this Court granted an order against the Respondent in the following terms:

I. That the matter is postponed sine die.

II. That the Respondent is suspended with immediate effect for practicing as an attorney pending finalisation of this matter.

III. That the Respondent to file an answering affidavit on or before 30 January 2012, and

IV. That the Respondent pays the costs on an attorney/client scale

The Respondent filed his answering affidavit and the Applicant also filed its replying affidavit. Further documents were filed by both parties in the form of supplementary affidavits.

3. It is common cause between the parties that the Respondent:

a. misappropriated trust funds and utilised trust funds for his personal purposes;

b. delayed payment trust funds to trust Creditors;

c. had a trust deficit of about R29 912.93 on 31 March 2010 in his trust account;

d. effected irregular transfers from his trust banking account to his business banking account;

e. contravened the provisions of the Attorneys Act and Applicant’s rules made under the authority of Section 74 of the Attorneys Act 53 of 1979;

f. failed to attend disciplinary proceedings of the committees of the council of Applicant;

g. failed to give proper attention to the affairs of his clients;

h. was unable to keep proper accounting records and proper books of account of his practice;

i. failed to answer correspondence from colleagues and that of the Law Society.

4. It is now settled law that the application of Section 22 (1) of Attorneys

Act 53 of 1979 involves an enquiry which is threefold (see Jasat vs Natal

Law Society 2000 (3) SA44).

I. The first enquiry is aimed at determining whether the Law society has established the offending conduct upon which it relies on a balance of probabilities;

II. The second question is whether in the light of the incidents thus established, the attorney concerned is not a ‘fit and proper’ person to continue to practise as an attorney; and

III. The third enquiry requires the Court to exercise its discretion whether the said person who has been found not to be a fit and proper person to practise as an attorney deserves the ultimate penalty of being struck from the roll or whether an order of suspension from practise will suffice.

5. The Respondent concedes that he misappropriated trust funds but justifies it in that he was expecting money from some of his clients who failed to pay him on time as was agreed. He further contended that it was only the one client’s trust funds that were misappropriated but that client did not suffer any prejudice since the client concerned was paid in full by him.

6. The Respondent contended that he did not know much about the handling of the trust account. He was first admitted and enrolled as an attorney in the Thohoyando High Court in 2001. Thereafter, he was enrolled as an attorney in Cape Town in 2004 and only admitted and enrolled in this court in 2006. In Cape Town he could not secure any employment - hence he came back to enrol his name with this Court in 2006. He only worked for about a year as a professional assistant and decided to start practising on his own account without any financial assistance in 2007. Between the period 2001 and 2007 he was only employed as a professional assistant and was never exposed to practical administering of a trust account or bookkeeping associated with it. He admitted having a certificate in “practice management” but alleges that it was issued to him without undergoing any formal training in that regard. He is prepared to attend a formal training on bookkeeping if he can be given an opportunity.

7. On receiving the R76 500.00 from the Road Accident Fund on behalf of Mr Kekana, he debited his fees in terms of the contingency agreement. Due to financial problems and having to meet his operating expenses, he transferred R50 000.00 into his business account hoping that his other clients would pay him in time so that he could pay Mr Kekana. Other than Mr Kekana’s trust funds, he has misappropriated no other trust funds and there is no trust deficit on his trust account as it stands today. His trust account is under the care and control of the Applicant since his suspension on the 2 December 2011. Mr Kekana was ultimately paid in full as was agreed upon as between attorney and client.

8. The other transgressions of the respondent, though serious, are of a lesser nature as compared to the misappropriation of trust funds which goes against the main rules of the Applicant. These include the respondent’s failure to give the necessary attention to the affairs of his clients, the failure to respond to correspondence of the Applicant and that of colleagues and failing to account to colleagues where the respondent was acting on behalf of a colleague as a correspondent. For all these transgressions the Applicant is still at liberty to haul the Respondent to its disciplinary committee. We are unanimous in our view that the above-mentioned

transgressions do not per se attract the ultimate penalty of strike off.

9. Looking at the totality of the evidence in this matter, it is my view that the Law Society has established the offending conduct of the Respondent. An attorney is expected to keep proper books of account and to maintain and administer its trust account in the proper manner. The trust account should be maintained in such a way that it is not a cent less than required. It must always have sufficient funds to meet its obligations. A reasonable attorney will not utilise the funds in his trust account for his own personal purposes.

10. Taking a leaf from the case of Summerley vs The Law Society of the Northern Province 2006 (5) SA 613 (SCA) the conduct of the Respondent in this regard is not that of a reasonable attorney and therefore the Respondent is not a ‘fit and proper’ person to practise as an attorney of this Court.

11. I now turn to discuss the third enquiry which is to determine the sanction to be imposed in this particular case:

11.1 The Respondent contended that Mr Kekana was ultimately paid in full as was agreed upon between the attorney and client and did not suffer any prejudice except for the delay in payment.

11.2 The other matters wherein the Respondent made transgressions are administrative in nature as indicated above and I shall not deal with them seriatim herein for the purposes of the sanction.

12. It was stated by Brand JA in the matter of Summerley vs The Law Society of the Northern Provinces as follows:

“Before imposing the severe penalty, the court should therefore be satisfied that the lesser stricture of suspension from practice will not achieve the objectives of the court’s supervisory powers over the conduct of attorneys. These objectives have been described as twofold: firstly, to discipline and punish errant attorneys and, secondly, to protect the public, particularly where trust funds are involved”.

13. It is contended that the respondent is incompetent and as such his transgressions as a whole show that he is unworthy to remain in the attorneys’ profession. He should be struck from the roll of attorneys and can apply for re- enrolment in the future after having attended the practice management course which is offered by the Applicant. The practice management course’s duration is six months and covers bookkeeping as well. The respondent has been suspended for almost two years now and has done nothing about improving and gaining more practical knowledge of bookkeeping and the administration and management of the trust funds and account.

14. I have no doubt in my mind that the transgressions of the respondent are serious when viewed in totality. The court has now to decide whether they were serious enough to warrant the extreme penalty of striking - off. In my view the respondent was not found guilty of dishonesty and therefor the penalty of striking off is rather too severe in this particular case. This is so because, on the respondent’s version, he did not have exposure to the administration and management of the trust account since his first admission as an attorney in 2001. He only started operating a trust account after he started practising on his own account in 2007.

15. The respondent appeared in person and did not strike me as a delinquent person but as someone who is prepared to learn and continue his professional career. Given a chance, the respondent undertook to attend the practice management course being offered by the Applicant. In my view, this court can play a pivotal role in protecting the public against the respondent by extending the suspension of the respondent with a further period of one year and ordering that he does not practise on his own account until he proves himself to this court that he is fit and proper to do so.

16. Having regard to all the facts and factors referred to above, I therefore make the following order:

I. That the Respondent be and is hereby suspended for a period of one (1) year from the date of this order;

II. That the Respondent is precluded from practising as an attorney for his own account, either as principal or in partnership or in association or as a director of a private company for a period of two years from the expiry of the suspension in (I) above;

IV. Should the respondent elect to practise in the manner set out in paragraph (II), after the expiry of the period of two years, he shall satisfy this Court that he should be permitted to practise for his own account;

V. That prayers 4 to 12 of the notice of motion are made an order of this court.

TWALA, AJ ACTING JUDGE OF THE NORTH GAUTENG HIGH COURT

I agree and it is so ordered.

MABUSE, J JUDGE OF THE NORTH GAUTENG HIGH COURT

Representation for the applicant:

Counsel Adv Mariaan van Rooyen

012 452 4127

Instructed by The Law Society of the Northern Provinces Representation for respondent

In person 076 173 5563