Law Society of the Northern Provinces v Maseka and Another (443/2006) [2006] ZANWHC 40 (1 June 2006)

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CASE NO: 443/2006

In the matter between:

THE LAW SOCIETY OF THE

Applicant

NORTHERN PROVINCES

and

JACOBUS TAPEDI MASEKA 1st Respondent

THE LAW SOCIETY OF BOPHUTHATSWANA 2nd Respondent

CIVIL MATTER

DATE OF HEARING : 12 MAY 2006

DATE OF JUDGMENT : 01 JUNE 2006

COUNSEL FOR THE APPLICANT : MR A LAMEY

COUNSEL FOR THE FIRST RESPONDENT : ADV N GUTTA

JUDGMENT

HENDRICKS J:

A. Introduction:

[1] This is an application by the Law Society of the Northern Provinces to have the First Respondent:-

[a] suspended from practice as an Attorney pending an application to have him strike from the roll of Attorneys.

[b] to interdict and prohibit him from operating on his trust account;

[c] to have a curator appointed with certain duties and powers to administer and control the trust account of the First Respondent.

B. The Parties:

[a] The Applicant:

[2] The Law Society of the Transvaal came into existence by Volksraadbesluit 1307 dated 19 October 1892 of the Zuid-Afrikaansche Republiek. The body continued in existence by virtue of the Constitution of the Incorporated Law Society of the Transvaal Ordinance 1 (Private) of 1905 (since repealed) and continued in existence by virtue of the Attorneys, Notaries and Conveyances Admission Act, No 23 of 1934 (since repealed) and continues further in existence by virtue of Section 56 of the Attorneys Act No 53 of 1979 (the Attorneys Act).

[3] Motivated by a desire to recognise the newly named areas of the erstwhile Transvaal Province, namely Gauteng, Mpumalanga, Limpopo and a portion of the North West Provinces over which it has jurisdiction, the Council of the Law Society of the Transvaal resolved on 23 February 2001, with effect from 01 March 2001, that the Law Society of the Transvaal henceforth be known as the Law Society of the Northern Provinces incorporated in terms of Section 56 of the Attorneys Act as the Law Society of Transvaal (the Law Society).

[b] The First Respondent:

[4] The First Respondent is Jacobus Tapedi Maseka, an Attorney and admitted as such on the 28th June 1988 in the High Court of South Africa (TPD) who is presently on the roll of Attorneys of the High Court of Bophuthatswana. First Respondent practices for his own account under the name and style Attorney Jake Maseka at 5049 Zone 4, Molatlhwa Street, GaRankuwa, and he is the Deputy President of the Second Respondent.

[c] The Second Respondent:

[5] The Second Respondent is the Law Society of Bophuthatswana which is a statutory body established by Section 50 of the Attorneys, Notaries and Conveyances Act, No 29 of 1984 (the Bop Attorneys Act) and have its offices at 5049 Zone 4, Molatlhwa Street, GaRankuwa. No relief is requested against the Second Respondent.

C. Point in limine:- Lack of Urgency:

[6] Mrs Gutta on behalf of the First Respondent raised in limine the fact that this application lacks urgency. In support of this submission she stated that the Applicant resolved on the 27th January 2006 and that an application be launched for the urgent suspension of the First Respondent pending the removal of his name from the roll of Attorneys. This resolution is dated 01 February 2006.

[7] The application was filed in this Court on 31 March 2006, two months after the resolution was taken.

[8] Mr Lamey on behalf of the Applicant submitted that because of the import of this matter and the interest of the public, technicalities should be overlooked. There are also degrees of urgency. A lot of research and preparation goes into an application of this nature and Respondents were given time to respond from 31 March 2006 until 20 April 2006 when it was supposed to be heard.

[9] I did not make a pronouncement on this point in limine at that stage and allowed argument on the merits.

[10] In my view this is not a type of matter where the Respondents can complain about being frog-marched to Court overnight and that they are prejudiced as a result thereof.

[11] They were given sufficient time to respond – at least three (3) weeks. It is understandable that it takes some preparation for an organisation such as the Applicant to compile and prepare an application such as this.

[12] The interest of the public also weighs very heavily and should be considered.

[13] In my view, as an officer of this Court, the First Applicant cannot hide behind the technicality of lack of urgency to have the proceedings nullified.

[14] As correctly pointed out by Mr Lamey, there are indeed degrees of urgency and this is one of the matters that did not come before this Court on an extremely urgent basis.

[15] It is for the abovementioned reasons that I allowed argument on the merits. The point in limine is therefore dismissed,

[16] Mrs Gutta abandoned the other points in limine raised by the First Respondent in his answering affidavit. I will therefore not deal with it in this judgment.

D. The Merits:

[17] It is alleged in the founding affidavit, at the time of drafting it, that the First Applicant committed the following offences:-

[a] he most probably misappropriated trust funds;

[b] he is currently practising as an Attorney without being in possession of a valid fidelity fund certificate;

[c] there are substantial trust deficits in his bookkeeping;

[d] he failed to keep proper books of account in respect of his practice;

[e] he contravened various provisions of the Act and Rules relating to bookkeeping by an Attorney;

[f] he failed to account to his clients;

[g] he delayed the payment of trust monies to his clients;

[h] he refused to allow the Applicant access to his accounting records for purposes of inspection thereof;

[i] Applicant received various complaints against him.

[18] I will deal with some of these alleged offences hereunder:-

[a] Fidelity Fund Certificate:

[19] It was alleged that the First Respondent was practicing as an Attorney without being in possession of a valid fidelity fund certificate. The averment made in the founding affidavit is to the effect that the First Respondent did not even apply for the issuing of a fidelity fund certificate.

[20] A supplementary affidavit of the First Respondent was handed in during the hearing of this matter. From this supplementary affidavit it is clear that First Respondent applied for a fidelity fund certificate to be issued to him for the year ending 31 December 2006.

[21] It was also submitted that an application for a fidelity fund certificate for the year ending 2006 should have been made before August 2005. First Respondent did comply therewith and he submitted his application during July 2005. He also complied with Rule 70 and submitted an unqualified auditor’s report. It is on the strength of this auditor’s report that a fidelity fund certificate was issued to the First Respondent which is valid until 31 December 2006.

[22] In a supplementary affidavit filed on behalf of the Applicant, it is stated that the First Respondent attended at the offices of Applicant on 26 April 2006 despite the pending application and applied for a fidelity fund certificate in respect of the year 2006. He apparently insisted that a fidelity fund certificate be issued to him.

[23] The Law Society had during April 2006 considered the issue of fidelity fund certificates to Attorneys and it was decided by its Council that the provisions of the Act relating to the issuing of fidelity fund certificates will be strictly applied in future.

[24] Therefore, in the event that an unqualified auditor’s report is submitted to the Law Society and the practitioner applies for the issue of a fidelity fund certificate such certificate must be issued to the practitioner by the Law Society. A fidelity fund certificate will only be withheld in the event of the failure to submit a Rule 70 auditor’s report to the Law Society or if the report submitted is qualified.

[25] In view of the abovementioned policy implemented by the Law Society, it had no choice but to issue the First Respondent with a fidelity fund certificate on 26 April 2006.

[26] Mr Lamey questioned the fact that the auditor’s report is unqualified, despite the fact that Applicant admits the existence of trust deficits. The fact that there was a trust deficit means that the auditor’s report should have been qualified in order to stipulate the trust deficit. The fact that the report is unqualified is indeed questionable.

[27] However, in my view, it cannot be said that the Applicant did not comply with the requirements for the issuing of a fidelity fund certificate, nor can it be said that the First Respondent practised without a valid fidelity fund certificate.

[b] Attempted inspection of accounting records:

[28] As a result of complaints received by the Applicant, Applicant resolved that an inspection of the First Respondent’s accounting records had to take place. A chartered accountant and auditor, Mr Swart was instructed to conduct an inspection of the accounting records of First Respondent’s firm.

[29] Mr Swart contacted the First Respondent’s offices on 06 May 2003 and 09 May 2003 in order to obtain an appointment to visit and to inspect the accounting records. First Respondent was not available and messages were left with his staff requesting the First Respondent to contact Mr Swart. No response was forthcoming. On 14 May 2003 Mr Swart managed to speak to the First Respondent and informed him of his mandate to inspect his accounting records. First Respondent refused to agree to a meeting and demanded to be informed in writing about it. Mr Swart complied by writing a letter the very same day.

[30] First Respondent failed to contact Mr Swart as requested by this letter. A further attempt to contact First Respondent was made on 21 May 2003 without success. A request was left with the First Respondent’s personnel. Again the First Respondent did not respond to the request.

[31] On 28 May 2003 Mr Swart managed to speak to the First Respondent who acknowledged that he did receive the letter of Mr Swart dated 14 May 2003 and that he would attend to the matter the following day. He did not contact Mr Swart.

[32] On 02 June 2003 Mr Swart managed to speak to the First Respondent. First Respondent informed him that he had addressed a letter on 30 May 2003 to Mr Swart. On 18 June 2003 the letter of First Respondent was replied to by Mr Swart. No further communication was received from the First Respondent.

[33] On 03 July 2003 Mr Swart again spoke to the First Respondent who raised the fact that Applicant had no authority over him.

[34] It is alleged that First Applicant made himself guilty of unprofessional, dishonourable or unworthy conduct in that he contravened Section 70 of the Attorneys Act because he refused to comply with a directive of the Law Society (Applicant) to produce his accounting records for inspection. As a result of the aforementioned attitude of the First Respondent, the Applicant applied to this Court for an order compelling the First Respondent to produce, for inspection by the Applicant, his accounting records relating to his practice as an Attorney.

[35] On 18 February 2005 Landman J granted an order compelling First Respondent to inter alia produce his firms’ accounting records for inspection.

[36] Leave to appeal against the judgment was refused by Landman J on 20 May 2005.

[37] Applications for leave to appeal to the Supreme Court of Appeal and the Constitutional Court were dismissed on 05 September 2005 and 04 October 2005 respectively.

[38] Though it is the right of every citizen in this country to approach a Court of law for the protection of his rights, it is indeed strange for an Attorney not to cooperate with the professional body who has authority over him. If an Attorney keeps proper accounting records, administers trust funds properly and comply with the provision of the Act and the Rules, he has nothing to hide and will cooperate with the professional body to which he belongs or which have authority over him.

[39] On 20 March 2005 the Applicant instructed a Chartered Accountant, Public Accountant and Auditor Mr Faris to conduct an inspection of the First Respondent’s accounting records.

[40] This inspection revealed that:-

[a] from the two trust receipt books presented, the First Respondent failed to issue receipts in respect of all monies deposited into the firms’ trust banking account, which cause the accuracy and reliability of client’s accounts to be doubtful;

[b] the two trust cash books were only written up until July 2005 and were not ruled off and balanced. He also failed to prepare bank reconciliation statements at the end of each month. He credited and debited trust interest and bank charges respectively and then transferred these amounts to another banking account. No posting references to classified ledger accounts could be found.

[c] two fee journals were presented. The first one revealed that fee entries have only been recorded during August 2004 and September 2004. The second fee journal contained no fee entries for March 2005 and July 2005. Monthly entries were not totalled and there were no references for posting to the debit of client’s business accounts and corresponding entries to the credit of the fees account. The firm’s business accounting records were therefore in arrears;

[d] the books contained classified accounts of client’s trust transactions. The entries were not referenced in order to indicate the relevant source records. They have furthermore not been totalled and balanced. The accounting records were not written up regularly;

[e] trust account interest and bank charges were credited and debited respectively and transferred to another banking account. This banking account is unidentified and no further information pertaining to this account could be found in the accounting records;

[f] during May 2005 a “trust interest” account was opened. Since then, the interest has been credited without being transferred to the separate banking account;

[g] there existed trust deficits at various month ends which also vary from month to month for the period February, July, August and September 2004 and February, March, May and July 2005;

It is incumbent upon an Attorney to ensure that his trust account is in order and that no trust deficits exist.

See:- Law Society of the Cape of Good Hope v Tobias 1991 (1) SA 430 (C);

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

The existence of trust deficits will lead to the striking off, of an Attorney’s name from the roll of Attorneys.

[h] from the listing of trust liabilities it appears that certain amounts were deposited in the First Respondents’ trust banking account, which amounts were not posted to the credit of the relevant client’s accounts. He also failed to issue receipts in respect of these monies;

[i] certain amounts were traced which were not credited. It is indicated in the report as “unknown credits”;

[j] two receipts totalling R11 647-36 (R3 434-63 and R8 212-73 respectively) were paid to the firm’s trust banking account from the business banking account. The amount of R3 434-63 was credited to a newly opened account called “trust interest” on 17 May 2005. On the same day the First Respondent issued a trust cheque in the amount of R2 975-88 to the Law Society in respect of payment of interest collected up to February 2005.

The amount of R8 212-73 was credited to the account of Nhlapo. This increased the credit balance to R36 119-59 which should have been held in the trust banking account.

[k] Various trust cheques were made out to “bearer”. Two of these cheques were drawn in favour of the First Respondent himself. First Respondent therefore withdrew trust monies from specific client’s accounts while he was not entitled to do so. There is also the suspicion that these cheques were cashed and not deposited in the firm’s business banking account.

[41] It is clear from the abovementioned that the First Respondent’s bookkeeping was not up to standard and it is in contravention with various Rules. It is incumbent upon an Attorney to keep proper books of account, and failure to do so will result in an Attorney been struck off the roll.

See:- Cirota and Another v Law Society, Transvaal 1979 (1) SA 172 (AD) at page 194;

Law Society, Transvaal v Matthews 1989 (4) SA 389 (T) at page 394 B-E.

[42] Various complaints were also received by the Applicant about First Respondent. I will deal with some of the complaints raised.

[i] Complaint:- J. Mekgwe:

[43] Mrs Mekgwe instructed the First Respondent to institute an action against the Road Accident Fund (RAF) for physical injuries sustained by her son as a result of a motor vehicle accident. First Respondent did not keep her advised of the progress made and she ultimately contacted the RAF and made some enquiries. She ascertained that the RAF paid the amount of R6 605-21 directly into the trust banking account of the First Respondent on 03 July 2000 (more that five (5) years ago).

[44] In a letter dated 20 February 2001 addressed by Mekgwe, the following is stated:-

“Our statement of the 18th December 2000 refers. Ignore the said statement as it is incorrect and the correct statement of account is as follows and we regret the inconvenience so caused.”

[45] No statement of 18th December 2000 is attached in order for this Court to see what was incorrectly reflected thereon.

[46] Furthermore, there is no indication in this statement that the amount of R6 605-21 was received from the RAF and credited to the account of Mekgwe. Instead, the statement reflects the following:-

“Amount received R660-52

Amount due to us R4 504-79

Total due to us R11 110-00.”

[47] In my view, this statement which the First Respondent send to Mekgwe does not reflect the true state of affairs in that it does not mention that the RAF did pay an amount of R6 605-21. Instead it only reflects an amount of R660-52 being received. Furthermore, it is not understandable how and why two different amounts, being R4 504-79 and R11 110-00, respectively, are indicated as the amount and total due to First Respondent.

[48] It is indeed questionable why such an exorbitant amount of R11 110-00 is reflected as the total due to the First Respondent by Mekgwe when the amount paid out by the RAF is only R6 605-21. Furthermore, the amount of R6 605-21 paid by the RAF included, as Attorney fees, an amount of R1 800-00. It defies all logic that an Attorney will carry out a mandate on behalf of his client with the result that the client does not benefit at all from it, but instead looses a substantial amount of money.

[49] Attorneys are not allowed to charge exorbitant fees. Though no evidence was lead to indicate what a reasonable fee would be, it is not hard to think that an amount of almost double the amount claimed can be said to be a reasonable fee.

See:- Law Society of the Cape of Good Hope v Tobias 1991 (1) SA 430 (C) at page 435 D.

[50] It was also discovered by Faris that First Respondent did not open and keep a ledger account in respect of Mekgwe. He failed to account to Mekgwe about the money he received from the RAF on behalf of her son, nor did he pay the said money over to Mekgwe. The money received from the RAF was deposited into the trust account of the First Respondent and most probably misappropriated.

[51] The First Respondent also claimed in the account that was send to Mekgwe, collection fees in respect of monies recovered on his own behalf. It was submitted by Mr Lamey that he was not entitled to claim a collection fee under this circumstances. It is indeed questionable as to how the First Respondent would be entitled to claim a collection fee from Mekgwe when the money is paid by the RAF directly into the trust account of the First Respondent.

[ii] Complaint:- J. Manganyi:

[52] Mr Manganyi instructed the First Respondent to institute a third party claim against the RAF on his behalf. After finalisation of the claim, the RAF paid an amount of R180 430-60 to the First Respondent on 04 March 2003.

[53] The First Respondent failed to advise Manganyi on the amount received from the RAF. He only paid an amount of R80 000-00 to Manganyi and retained the balance.

[54] In her affidavit, Mrs Manganyi states that the First Respondent never presented her with a statement (bill of costs).

[55] In response, First Respondent states that his client was Mr Manganyi and not Mrs Manganyi. He attended to the claim to the best of his ability and he did account to his client about the money he received from the RAF. Mr Manganyi was satisfied with the statement of account and he never complained.

[56] According to him, long after the death of Mr Manganyi (his client), did Mrs Manganyi lodge this complaint with the Applicant. He maintains that this complaint is frivolous.

[57] It is indeed interesting to note that First Respondent doesn’t deny that he only paid an amount of R80 000-00 albeit to his client Mr Manganyi. All that he states is that he did furnish a statement to his client. He, however, does not attach a copy of this statement of account in order to convince this Court that he indeed furnished Mr Manganyi with a statement and that everything was in order. He further fails to explain:-

[i] when he advised Mr Manganyi of the receipt of the money from the RAF;

[ii] when he accounted to his client;

[iii] what amount he paid to his client;

[iv] how the amount paid to his client was calculated;

[v] what amount was retained and how it was utilised;

[vi] what the amount of his costs was and how it had been calculated.

[iii] Complaint:- S.N.J. Letlhaka:

[58] Mr Letlhaka commenced service on 20 May 2002 apparently as a professional assistant in the First Respondent’s employ. He deposed to an affidavit in which the following is stated:-

[59] The First Respondent, who is a member of Parliament, spent most of his time in Cape Town when Parliament is sitting and only attended to his office over some weekends resulting in a lack of supervision and control of his (First Respondent’s) office.

[60] The First Respondent was apparently in financial difficulty and announced to his staff at the end of June 2002 that he was not in a position to pay them their salaries.

[61] The First Respondent’s office was in a state of disarray and it served as his legal practice, the office of the administration of the Bophuthatswana Law Society (the Second Respondent) and the local office of a political party, the United Democratic Movement (UDM).

[62] The affairs of his clients are not attended to properly and several claims of clients against the RAF and others have prescribed because of the First Respondent’s failure to properly attend to these matters and because of the lack of resources in his office.

[63] Essential office equipment, such as computers and printers, are not operative with the result that matters of clients cannot be attended to.

[64] The First Respondent was not fulfilling his duty towards the candidate Attorney who was in his employ. He did not train the candidate Attorney nor was the candidate Attorney under the First Respondent’s direct personal supervision.

[65] Understandably, the fidelity fund was concerned about the information supplied to it, particularly concerning:-

[i] the possibility that trust monies may have been or may be stolen or misappropriated;

[ii] the allegations that claims which are time barred, such as ordinary money claims or claims against the RAF, may have been allowed to prescribe or may well prescribe in the future;

[iii] the allegations that the First Respondent’s practice is not under his direct personal control.

[66] Negligence on the part of the First Respondent will inevitably result in civil claims against him and this will impact directly on the professional indemnity insurance scheme operated by the fidelity fund in respect of practising Attorneys.

[67] Based on inter alia the abovementioned, the Law Society instructed a Charted Accountant and Auditor Mr Deleeuw Swart (Swart) to visit the First Respondent and to conduct an inspection of the firm’s accounting records and the complaints received by the Law Society.

[68] I have already alluded to the attempts that Swart made in order to inspect the First Respondent’s books and his failure to do so earlier on in this judgment.

[69] In response to these allegations, First Respondent states that this complaint is without merit and is denied. His office had never been in disarray and his office equipment was functioning properly. He attended to all his client’s affairs and no claim had ever prescribed. Furthermore, he fulfilled all his duties towards the candidate Attorney. He raised the fact that Letlhaka “only wanted to earn more that [than] he was bringing [in]”, as the only possible motive why Letlhaka did depose to this affidavit.

[70] First Respondent doesn’t deny that:-

[i] he was a parliamentarian and as such was in Cape Town when parliament was in session and therefore absent himself from his office for certain periods of time;

[ii] that his office was also the branch office of the United Democratic Movement (UDM), which is a political party;

[iii] that his office also host the Second Respondent and serves as the Administration office of the Second Respondent.

[71] I am of the view that there is merit in the statement of Letlhaka as a person who was actively involved in and aware of the running of the office of the First Respondent. As to why he would depose to an affidavit making such serious allegations about First Respondent which would be unfounded and false, is unthinkable.

[72] Even the allegation that First Respondent could not pay the salaries of his staff (including Letlhaka) is not pertinently denied. First Respondent only state that he never experienced financial difficulties, which is a bold vague statement. If it is indeed not true, it is expected of the First Respondent to categorically state it as such and not to make a vague statement that he never experienced financial difficulties.

[73] In my view it is obvious that the First Respondent failed to reply to this serious complaint properly, comprehensively and candidly. The bare denials are without proper explanations.

[74] First Respondent does not provide any particulars regarding his financial status at that time and the position of his office. He also fails to provide proof that his personnel had indeed been paid timeously, that no claims had prescribed and that he fulfilled his duties towards his candidate Attorney.

[75] Law Societies are empowered by the Act to play an important role in ensuring that legal practitioners conduct themselves with integrity. They do so in the public interest.

See:- Law Society of the Cape of Good Hope v Budricks 2003 (2) SA 11 (SCA).

[76] Van Dijkhorst J in Prokureursorde van Transvaal v Kleynhans 1995 (1) SA 839 (T) at 851 G states that:-

“Hierdie hof het die bevoegdheid om sy eie prosedure te reël.

Dit is per slot van rekening ‘n dissiplinêre ondersoek, nie ‘n siviele geding nie.

Die vraag of die jurisdiksie wat die Applikant aan a. 22 van die Wet op Prokureurs ontleen geldig is, is dus nie wesenlik nie. Die geskilpunte draai om die geskiktheid van die Respondent om as prokureur te praktiseer, nie om die Applikant se locus standi nie.”

[77] Bertelsman J in the matter of The Law Society of the Northern Provinces v Peter Clive Soller (unreported case No 992/2001 TPD) states the following:

“It follows that the respondent has no right to insist upon a disciplinary enquiry being held prior to steps being taken for his removal from the roll. In fact, this Court could mero motu initiate steps to strike the respondent’s name off the roll of Attorneys, and could do so, albeit notionally, without reliance upon the applicants’ co-operation or, indeed, against the applicants’ wish.”

[78] I am in full agreement with Bertelsman J. This Court can determine whether an Attorney, as an officer of this court, is a fit and proper person to practice, or continue to practice as such. This is done in the interest of and for the protection of the public for which the Attorney renders a service. Attorneys should render the service honestly and with integrity.

See:- Jasat v Natal Law Society 2000 (3) SA 44 (SCA).

[79] As pointed out by Van Dijkhorst J in the case of Prokureursorde van Transvaal v Kleynhans, supra, that an application to either suspend or strike an Attorney from the roll of Attorneys is indeed a disciplinary hearing and not a civil action.

[80] Although this application consists of two parts namely, at first it is an application for the suspension of the First Respondent and secondly it is an application to strike the First Respondent from the roll of Attorneys, what is now before me is the first part. However, in both instances, the First Respondent are called upon to reply to the allegations and thereby given a chance to present his case.

[81] Mrs Gutta submitted that the Attorneys Act provides for either suspension or striking off and not for both at the same time. In my view, the approach by the Applicant cannot be faulted. It is for the Court to decide, in the exercise of its discretion, whether to suspend an Attorney or whether to strike his name off the roll of Attorneys.

See:- Law Society of the Cape of Good Hope v King 1995 (2) SA 887 (C).

E. Conclusion:

[82] Whether individually considered or cumulatively, the abovementioned complaints are indicative of unprofessional conduct on the part of the First Respondent.

[83] His conduct does not meet the standard of behaviour which is required from an Attorney as an officer of the Court.

[84] Though the decision to suspend of to strike an Attorney’s name off the roll of Attorneys should not be taken lightly, I am satisfied that a case has been made out for the suspension of the First Respondent from practising as an Attorney.

See:- Prokureursorde van die Oranje-Vrystaat v Roodt 1996 (2) SA 498 (O) at page 512 H.

F. Costs:

[85] I am of the view that this is a case in which costs should follow the result and the Applicant is entitled to an order for costs. No relief is sought against the Second Respondent and therefore no cost order will be awarded against Second Respondent.

[86] The manner in which the First Respondent conducted himself, as an officer of the Court, during the investigations and especially his uncooperativeness and defiance thereafter, leaves much to be desired.

[87] I am of the view that a punitive cost order is warranted under the circumstances.

In the premises I make the following order:-

[1.1] that the forms and service provided for in the Uniform Rules are dispensed with and that the matter is treated as a semi-urgent application;

[1.2] that Jacobus Tapedi Maseka (hereinafter referred to as the First Respondent) is suspended from practising as an Attorney of the above honourable Court, pending the final determination of this application;

[1.3] that the First Respondent surrenders and delivers to the registrar of this honourable Court his certificate of enrolment as Attorney of this honourable Court;

[1.4] should the First Respondent fail to comply with the provisions of the preceding paragraph of this order on date of service of this order upon him, the sheriff for the district in which such certificate of enrolment is, is empowered and directed to take possession thereof and deliver it to the registrar of this honourable Court;

[1.5] that the First Respondent be and is hereby interdicted and prohibited from operating on his trust accounts as defined in paragraph 1.6 hereof;

[1.6] that Johan van Staden, the Head: Members’ Affairs of Applicant, is appointed as a curator to administer and control the trust account of First Respondent, including accounts relating to insolvent and deceased estates and any deceased estate and any estate under curatorship connected with the First Respondent’s practice as Attorney and including, also, the separate banking accounts opened and kept by the First 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 the First Respondent’s accounting records, records, files and documents as referred to in paragraph 1.7;

[1.6.2] 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 First Respondent was acting at the date of this order;

[1.6.3] subject to the approval and control of the board of control of the fund, to recover and received and, if necessary in the interest of persons having lawful claims upon the trust account(s) and/or against First Respondent in respect of monies held, received and/or invested by First 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 First Respondent was and may still have been concerned and which may have been wrongfully and unlawfully paid from the trust account(s) of First Respondent, and to receive such monies and to pay same to the credit of the trust account(s);

[1.6.4] to ascertain from First Respondent’s accounting records the names of all persons on whose account First Respondent appears to hold or to have received trust monies (hereinafter referred to as trust creditors) and to call upon First Respondent to furnish him, within thirty (30) 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;

[1.6.5] 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 First Respondent and, if so, the amount of such claim;

[1.6.6] to admit or reject, in whole or 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 creditors’ right of access to the civil courts;

[1.6.7] having determined the accounts which he considers are lawfully due to trust creditors, to pay such claims in full but subject to the approval of the board of control of the fund;

[1.6.8] in the event of there being any surplus in the trust account(s) of First 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 First Respondent, the costs, fees and expenses referred to in Section B, paragraph 1.3 of this order, or such portion thereof as has not already been separately paid by First 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 First Respondent, if he is solvent, or, if First Respondent is insolvent, to the trustee(s) of First Respondent’s insolvent estate;

[1.6.9] in the event of there being insufficient trust monies in the trust banking account(s) of First Respondent to pay in full the claims of trust creditors, to distribute the credit balance(s) in the trust banking account(s) pro rata amongst the trust creditors whose claims have been proved or admitted;

[1.6.10] 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

[1.6.11] to render from time to time, as curator, returns to the board of control of the fund showing how the trust account(s) of First Respondent 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 First Respondent immediately deliver his accounting records, records, files and documents containing particulars and information relating to:

[1.7.1] any monies received, held or paid by First Respondent for or on account of any person while practising as an Attorney;

[1.7.2] any monies invested by First 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 First Respondent;

[1.7.4] any estate of a deceased person, or any insolvent estate, or any estate placed under curatorship of which First Respondent is the executor, trustee or curator or which First Respondent are administering on behalf of the executor, trustee or curator of such estate; and

[1.7.5] First Respondent’s practice as Attorney of this honourable Court, to the curator appointed in terms of paragraph 1.7 hereof, provided as far as such accounting records, records, files and documents are concerned, First Respondent shall be entitled to have access to them but always subject to the supervision of such curator or his nominee;

[1.8] that should First 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 First 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 where ever 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 thereto all such records, files and documents as soon as he has satisfied himself that the fees and disbursements in connection therewith have been paid or satisfactorily secured or that same are no longer required, provided that a written and signed undertaking by a trust creditor or pay such amount as may be due to First Respondent, either on taxation or by agreement, shall be deemed to be satisfactory security for the purposes of the preceding paragraph hereof; provided that such written and signed undertaking incorporates a domicilium citandi et executandi of such trust creditor;

[1.9.2] require that any such file, the contents of which he may consider to be relevant to a claim, or possible or anticipated claim, against him and/or First Respondent and/or First Respondent’s clients and/or fund in respect of money and/or other property entrusted to First Respondent be re-delivered to him (the curator): provided that any person entitled thereto shall be granted reasonable access thereto and shall be permitted to make copies thereof;

[1.10] that First Respondent, within one (1) year of 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 (First 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 purporting to be signed by the curator specifying the number of hours spent by him, shall constitute prima facie proof of the number of hours spent by him on this matter;

[1.12] First Respondent is ordered to pay the cost of this application on an Attorney-and-client scale.

R D HENDRICKS

JUDGE OF THE HIGH COURT

Attorneys for the Applicant: MINCHIN & KELLY ATTORNEYS