Law Society of The Northern Provinces v Maluleke (54223/12) [2014] ZAGPPHC 447 (6 June 2014)

IN THE GAUTENG HIGH COURT. PRETORIA

(REPUBLIC OF SOUTH AFRICA)

CASE NO: 54223/12

In the matter between:

THE LAW SOCIETY OF THE NORTHERN PROVINCES........................................................Appellant

AND

SHIRILELE LEON MALULEKE................................................................................................Respondent

JUDGEMENT

MOJUTO AJ

[1] This is an application brought by The Law Society of The Northern Provinces for the removal of the Respondent’s name from the roll of attorneys, alternatively for his suspension from practicing as such.

[2] The Respondent is Shirilele Leon Maluleke who was admitted and enrolled to practice as an attorney of this court on 5th November 1996. Having worked in various capacities and different law firms, he commenced practicing sole for his own account under the style and name Maluleke Attorneys on 29th February 2010.

[3] The matter came before us unopposed, service was effected through substituted service in various print media.

[4] The issue to be decided is whether the Respondent is a fit and proper person in terms of section 22 (1) (d) of the Act. This task does not depend on factual findings but lies in the discretion of the court.

[5] The court in exercising it’s discretion in matters of this nature, conducts an enquiry which isthreefold:

[i] The court must firstly decide as a matter of fact if the alleged offending conduct by the attorney has been established,

[ii] if such conduct referred to above has been established satisfactorily, the court has to decide whether the person concerned is a fit and proper person to practice as an attorney,

See Kaplan v Incorporated Law Society, Transvaal, 1981 (2) SA page 762 at paragraph A- C.

[iii] and if the court decides that the attorney concerned is not a fit and proper person to practice as an attorney, the court must decide on what the appropriate sanction is, be it removal and/or suspension.

See: Law Society of the Northern Provinces [568/2007][2008]ZASCA 90 (12/09/2008 at 4-9).

[6] A brief overview of the facts are as follows: The Respondent failed to lodge an unqualified audit report for the period ending February 2011 as required by the Applicant’s Rule 70.4 read with Rule 70.3. As a result, he was not issued with a Fidelity Fund Certificate while section 83 (10) of the Act makes it a criminal offence for an attorney to practice without such a certificate.

[7] On 24thOctober 2011 the Applicant sent a letter to the Respondent calling upon him to appear before a disciplinary committee of the Applicant to answer to charges arising from his failure to comply with Rule 70.4 read with Rule 70.3.

[8] The Respondent did not bother or make an effort to attend the disciplinary enquiry.On the 19th of March 2012 a further letter was sent to the Respondent wherein he was once again urged to attend to outstanding issues.

[9] As a result of the Respondent’s lack of interest in the matter, the Applicant commissioned Ms Mapfumo to conduct an investigation into the Respondent’s firm after no audit report was received from the Respondent for the period in issue. In her report she indicated that the Respondent has abandoned his practice.

[10] On the probabilities we are satisfied that the Respondent has contravened Rule 89.17, Rule 70.3, Rule 70.4 and section 41 (1) and section 41 (2) of the Attorneys Act, and that his conduct is not in line with the standard expected of an attorney

[11] We are of the view that the conduct of the Respondent amount to such a material deviation from the standard of professional conduct.that he is not a fit and proper person to continue to practice as attorney.

[12] I interpose and note that the Applicant made a concession that there are no complaints which has come to their knowledge against the Respondent nor suspicion that he is currently practicing as an attorney without the Fidelity Fund Certificate.

[13] In the light of the above Shirilele Leon Maluleke, herein referred to as the Respondent, should and is hereby suspended in his practice as an attorney of this Honorable court.

[14] The following order is made ;

(1) The Respondent is suspended from practicing as an attorney

(2) The draft order prepared by the Applicant and attached hereto as Annexure “X” is also made an Order of court.

JM MOJUTO

ACTING JUDGE OF THE HIGH COURT

I agree

CP RABIE

JUDGE OF THE HIGH COURT

IN THE HIGH COURT OF SOUTH AFRICA

(NORTH GAUTENG HIGH COURT, PRETORIA)

Case No: 54223/2012

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

(Incorporated as the Law Society of the Transvaal)

and

SHIRILELE LEON MALULEKE.................................................................................................Respondent

DRAFT ORDER OF COURT

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

IT IS ORDERED

1. That SHIRILELE LEON MALULEKE (hereinafter referred to as the respondent) be suspended in his practice as an attorney of this Honourable Court.

2. That the respondent immediately surrender and deliver to the registrar of this Honourable Court his certificate of enrolment as an attorney of this Honourable Court.

3. 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.

4. That the respondent be prohibited from handling or operating on his trust accounts as detailed in paragraph 5 hereof.

5. 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:

5.1 immediately to take possession of respondent's accounting records, records, files and documents as referred to in paragraph 6 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;

5.2 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);

5.3 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;

5.4 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;

5.5 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;

5.6 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;

5.7 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 10 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;

5.8 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;

5.9 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

5.10 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.

6. That respondent immediately delivers her accounting records, records, files and documents containing particulars and information relating to:

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

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

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

6.4 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;

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

6.6 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;

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

6.8 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

6.9 respondent's practice as an attorney of this Honourable Court, to the curator appointed in terms of paragraph 5 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.

7. 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.

8. That the curator shall be entitled to:

8.1 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;

8.2 require from the persons referred to in paragraph 8.1 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.

9. That respondent be and is hereby removed from office as:

9.1 executor of any estate of which respondent has been appointed in terms of section 54(1)(a)(v) of the Administration of Estates Act, No 66 of 1965 or the estate of any other person referred to in section 72(1);

9.2 curator or guardian of any minor or other person’s property in terms of section 72(1) read with section 54(1)(a)(v) and section 85 of the Administration of Estates Act, No 66 of 1965;

9.3 trustee of any insolvent estate in terms of section 59 of the Insolvency Act, No 24 of 1936;

9.4 liquidator of any company in terms of section 379(2) read with 379(e) of the Companies Act, No 61 of 1973;

9.5 trustee of any trust in terms of section 20(1) of the Trust Property Control Act, No 57 of 1988;

9.6 liquidator of any close corporation appointed in terms of section 74 of the Close Corporation Act, No 69 of 1984.

10. That respondent be and is hereby directed:

10.1 to pay, in terms of section 78(5) of Act No. 53 of 1979, the reasonable costs of the inspection of the accounting records of respondent;

10.2 to pay the reasonable fees of the audijor engaged by applicant;

10.3 to pay the reasonable fees and expenses of the curator, including travelling time;

10.4 to pay the reasonable fees and expenses of any person(s) consulted and/or engaged by the curator as aforesaid; and

10.5 to pay the costs of this application on an attorney-and-client scale.

11. 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;

12. 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.

13. That in the event that the Respondent intends to continue to practice after the expiry-oMhe two year-period) the Respondent shall make an application to this Court demonstrating that the infractions which brought about his suspension from practice as an attorney has been corrected and further demonstrating that he is a fit and proper person to be allowed to continue to practice as an attorney.

BY ORDER OF THE COURT

REGISTRAR