Law Society of the Northern Provinces v Mogami and Others (381/06) [2006] ZANWHC 36 (26 May 2006)

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CASE NO: 381/06

In the matter between:

THE LAW SOCIETY OF THE

NORTHERN PROVINCES Applicant

(Incorporated as the Law Society of the Transvaal)

and

TSHEGOFATSO CHRISTOPHER MOGAMI 1st Respondent

NICLAS MODISE MABUSE 2nd Respondent

THE LAW SOCIETY OF BOPHUTHATSWANA 3rd Respondent

CIVIL MATTER

DATE OF HEARING : 11 MAY 2006

DATE OF JUDGMENT : 26 MAY 2006

COUNSEL FOR THE APPLICANT : MR A. LAMEY

COUNSEL FOR THE

1st AND 2nd RESPONDENTS : MR H.E.T.H. MABASO

3rd RESPONDENT : ADV C ZWIEGELAAR

JUDGMENT

______________________________________________________________

HENDRICKS J:

A. Introduction:

[1] In the notice of motion filed in this Court on the 20th March 2006, the Applicant launched an urgent application to be heard on 06 April 2006, applying as interim relief, inter alia, that:-

[i] the First and Second Respondents be suspended from practising as Attorneys pending the final determination of this application;

[ii] the First and Second Respondents be interdicted from operating on their trust accounts;

[iii] that a curator be appointed with certain powers to perform certain functions and duties with regard to the practices of the First and Second Respondents.

[2] This application was opposed and postponed to the 28th April 2006 and 04 May 2006 respectively. When this matter came before me on 04 May 2006, all the Respondents brought applications to have the matter removed from the roll pending the determination of an application under case no 24/06 in the Constitutional Court, which is an application for direct access to the Constitutional Court in order to test the constitutionality of the provisions of the Attorneys Act, Act 53 of 1979 in as far as it confers concurrent jurisdiction over practising Attorneys in the erstwhile area of Bophuthatswana to the Applicant.

[3] After listening to the submissions from all parties concerned, I refused the application for the removal of this matter from the roll and I also ordered Respondents to pay the costs jointly and severally. The matter was then postponed until the 11th May 2006 for argument.

[4] An application for leave to appeal against my decision of the 04th May 2006 was filed with the Registrar on 09 May 2006, which application was opposed. A “notice of removal from the roll” was filed on the 09th May 2006. As a result of its ambiguous contents, it was not clear whether the matter in its entirety or the application for leave to appeal was to be “removed from the roll”.

[5] On the 11th May 2006, when this matter was argued, Mr Mabaso withdrew the application for leave to appeal and tendered the costs by the First and Second Respondents. I then ordered the withdrawal of the application for leave to appeal with an appropriate order as to costs.

[6] It was brought to my attention in a supplementary affidavit filed on behalf of the Applicant that the application for direct access to the Constitutional Court under case no 24/06 had been dismissed on 05 May 2006.

[7] Mr Mabaso then wanted to hand in supplementary affidavits on behalf of the First and Second Respondents as though he has a right to simply hand such affidavits in. After the Court explained to him that it is not the correct procedure simply to hand up supplementary affidavits on the date of hearing of the matter, he then attempted to apply to have it handed in. Mr Mabaso addressed the Court with regard to the necessity of filing these supplementary affidavits and why it is done at such a late stage. It became apparent to me that it was not in the interest of justice to admit those affidavits. More so, because of the prejudice that the Applicant will suffer to have the matter postponed once again when it was indeed ripe for hearing.

[8] These affidavits were served on the Applicant shortly before it was to be handed to Court at 10h00 on the morning of the hearing of the application. Sight could not be lost of the fact that this matter started off as an urgent application.

[9] Subsequently, in exercising my discretion judicially, I refused to have these supplementary affidavit admitted. The matter was thereafter argued and judgment was reserved.

B. The Parties:

[a] The Applicant:

[10] The Applicant is the Law Society of the Northern Provinces incorporated as the Law Society of the Transvaal. It is a society as contemplated in Chapter 3 of the Attorney’s Act, Act 53 of 1979.

[11] The Law Society of the Transvaal is described as a juristic person in terms of Section 56 (c) of the Attorneys Act, Act 53 of 1979 (the Attorneys Act).

[12] Upon the disappearance of the former Transvaal Province, the Law Society of the Transvaal has renamed itself as the Law Society of the Northern Provinces.

[b] The First Respondent:

[13] The First Respondent is Tshegofatso Christopher Mogami, an Attorney of this Court, who was admitted as such on 30 November 2000, and who is a member of the Third Respondent.

[c] The Second Respondent:

[14] The Second Respondent is Niclas Modise Ditshipi Mabuse , an Attorney of this Court, who was admitted as such on 01 February 2001 and who is also a member of the Third Respondent.

[15] First and Second Respondents practice under the name and style of Mogami Mabuse Incorporated at Suite 104, Ground Floor, TCM Central House Building, Mabopane. As to when the practice was incorporated is not clear, save to state that the First and Second Respondents were initially partners as borne out by letterheads and details on some of the letters.

[d] The Third Responent:

[16] The Third Respondent is the Law Society of Bophuthatswana which is a statutory body established by Section 50 of the Attorneys, Notaries and Conveyances Act, Act No 29 of 1984 (the Bop Attorneys Act) situated at 5049 Molatlhwa Street, Zone 4, GaRankuwa.

C. Points-in-limine:

[i] No locus standi:

[17] Mr Mabaso on behalf of the First and Second Respondents argued that the Applicant lacks the necessary locus standi in order to bring this application since it is not a statutorily recognised body whose continued existence is ensured or recognised by Section 56 of the Attorneys Act.

[18] This is the same argument which Mr Mabaso advanced before me in the, as yet unreported, judgment in the case of The Law Society of the Northern Provinces and Gaborone Mothoagae & Another, case no 1460/2005, delivered on 12 January 2006.

See:- Paragraphs 8 to 12 of that judgment.

[19] The same issue was also decided by my brother Landman J in the matter of Law Society, Northern Provinces v Maseka & Another 2005 (6) SA 372 (BHC)

See:- Page 374 J – 375 B.

[20] In both the above mentioned matters it was found that the Applicant does have the necessary locus standi to bring the applications.

[21] This argument also received the attention of the Supreme Court of Appeal in the matter of Mabaso v Law Society, Northern Provinces 2004 (3) SA 453 (SCA). Mpati DP described this argument in par 10 of the judgment of that Court as fallacious. I can do no more than to echo the view expressed by Mpati DP.

[22] In my view, it has now become settled law that the Applicant has the necessary locus standi to bring this kind of applications against members of the Third Respondent. This is my finding despite the unpersuasive argument by Mr Mabaso that I am not bound by the decision of the SCA because it is clearly wrong.

[ii] The unconstitutionality of Section 84 A as being discriminatory:

[23] Mr Mabaso also advanced the argument that Section 84 A is discriminatory against members of the Third Respondent and therefore unconstitutional. This is also the same argument that was advanced before me in the Law Society of the Northern Provinces v Mothoagae matter, supra. I need not repeat my finding in detail, save to reiterate that I am of the view that it is not unconstitutional.

See:- Paragraphs 13 to 37 thereof.

[24] This view is shared by my brother Landman J in the matter of Law Society , Northern Provinces v Maseka, supra.

[25] This judgment of my brother Landman J was appealed against and the Supreme Court of Appeal dismissed the application for leave to appeal on 05 September 2005.

[26] A further application for leave to appeal was then lodged with the Constitutional Court under case no CCT 45/05.

[27] The Constitutional Court has considered the application for leave to appeal and concluded that it is not in the interest of justice to grant leave to appeal because of the absence of prospects of success on appeal, and consequently refused leave to appeal on 04 October 2005.

[28] It has also now become settled law that Section 84 A of the Attorneys Act is not unconstitutional nor discriminatory in nature.

[29] As stated earlier on in this judgment, even the application for direct access to the Constitutional Court to test the constitutionality of certain provisions of the Attorneys Act under case no 24/06 was also refused by the Constitutional Court.

[30] I am of the view that the aspects concerning the constitutionality of some of the provisions of the Attorneys Act have now been laid to rest.

[iii] Lack of Urgency:

[31] This application was filed with this Court on 20 March 2006 and was supposed to be heard on 06 April 2006 as the date indicated in the notice of motion. On the 06th April 2006 it was postponed until 28 April 2006 and 04 May 2006 respectively and subsequently to the 11th May 2006 when it was eventually argued.

[32] It was submitted by Mr Mabaso on behalf of the First and Second Respondents that the Applicant fails to proof that this matter is urgent.

[33] It is clear that the time frame allowed by the Applicant for response clearly indicates that they did not treat the matter as extremely urgent but on a semi-urgent basis. There are degrees of urgency. It is not that the Respondents were dragged or frog-marched to Court overnight. Sufficient time in my view was allowed for them to respond and it cannot be argued that Respondents were severely prejudiced due to time constraints.

[34] As earlier stated, the First and Second Respondents were not in possession of fidelity funds certificates when this application was launched. Applicant had reason to belief (at least by then) that they were not keeping proper books of account.

[35] The trust creditors are at risk of loosing their money and so too are the Attorney’s fidelity fund at risk to suffer losses. Furthermore, the public need to be protected and this must be done as soon as it is practical possible to do so.

[36] I am of the view that the Applicant was entitled to bring this application in the manner and within the time frame it had.

[37] It is for the abovementioned reasons that I had dismissed the points raised in limine by the First and Second Respondents.

D. Offences committed by First and Second Respondents:

[38] The Applicant states that the First and Second Respondents committed the following offences:-

[i] they are practising without fidelity fund certificates;

[ii] they failed to submit their Rule 70 auditor’s report for the year ending 28 February 2005 to the Applicant (Law Society);

[iii] they most probably misappropriated trust monies;

[iv] they failed to allow the Applicant to inspect their firm’s accounting records;

[v] they failed to account to their clients in respect of trust monies;

[vi] they delayed the payment of trust monies to clients.

[39] In addition, the Applicant received serious complains against them which will be dealt with later on in this judgment.

[40] I will deal with some of the abovementioned offences hereunder:-

[i] Practising without Fidelity Fund Certificates:

[41] Section 41 (1) of the Act provides that a practitioner shall not practise or act as a practitioner on his own account or in partnership unless he is in possession of a fidelity fund certificate. It is peremptory for a practitioner to be in possession of a fidelity fund certificate in order to practise as an Attorney.

[42] The purpose thereof is to protect the general public. The Attorney’s fidelity fund was founded for the purpose of reimbursing persons who suffer pecuniary loss as a result of theft committed by a practising Attorney.

[43] A fidelity fund certificate is issued when a Law Society is satisfied that a practitioner has discharged all his liabilities to the Society in respect of his contributions and that he has complied with all other lawful requirements of the Society, but it is issued mainly on the strength of an unqualified Rule 70 auditor’s report which must be submitted to the Law Society annually.

[44] In the founding affidavit deposed to by Ronald Bobroff on behalf of the Applicant, he alleges that the First and Second Respondents have practised as Attorneys without being in possession of fidelity fund certificates since 01 January 2006, seeing that their fidelity fund certificates expired on 31st December 2005. They acted contrary to a compelling legal requirement and are therefore guilty of an offence.

[45] The Director of the Applicant, Martinus Johannes Stephanus Grobler deposed to a supplementary affidavit on behalf of the Applicant. He states the following therein:-

“2. Despite the pending application either the first or the second respondent on 21 April 2006 attended the Law Society’s offices and applied for fidelity fund certificates in respect of the year 2006.

3. The first or the second respondent insisted that fidelity fund certificates be issued to both the first and second respondent on the strength of the unqualified auditor’s report which had been submitted to the Law Society on 21 April 2005.

The Law Society recently reconsidered the issue of fidelity fund certificates to attorneys and it was decided by the Council during April 2006 that the provisions of the Act relating to the issuing of fidelity fund certificates will be strictly applied. 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.

5. In view of abovementioned policy implemented by the Law Society it had no choice but to issue the first and second respondents with fidelity fund certificates on 21 April 2006.”

[46] It is indeed important to note that the auditor’s report is dated February 2006 and received and accepted by the Applicant on 21 April 2006. This simply means that the First and Second Respondents were practising as Attorneys without fidelity fund certificate for the periods of 01 January 2006 to 21 April 2006.

[47] It is also noteworthy that both First and Second Respondents applied for their fidelity fund certificates when this application was already before Court.

[48] Thus, at the time of launching this application, the First and Second Respondents were indeed practising without fidelity fund certificates in contravention of Section 41 (1) of the Attorneys Act.

[ii] Failure to submit Rule 70 auditor’s report:

[49] From the preceding paragraphs in this judgment it is apparent that the First and Second Respondents only submitted their auditor’s reports on 21 April 2006. On the 20th March 2006 when this application was filed, First and Second Respondents have not submitted their auditor’s reports. Their Rule 70 auditor’s reports for the financial year ending 28 February 2005 had to be submitted to the Law Society on or before 31 August 2005.

[50] The purpose of the Rule 70 auditor’s report is to satisfy the Law Society that an Attorney’s accounting records are kept in accordance with the provisions of the Rules and the Act and that an Attorney handles and administers trust monies entrusted to him by his clients properly and responsibly. By failure to submit their Rule 70 auditor’s reports to the Applicant, the First and Second Respondents contravened the provisions of Rule 70.

[iii] Trust monies and related matters:

[51] The other offences of misappropriation of trust monies; failure to account to their clients in respect of trust monies; delay of payment of trust monies to clients and the failure to allow the Applicant to inspect their firm’s accounting records will be dealt with when the respective complaints are discussed herein below.

[52] Mr Lamey on behalf of the Applicant submitted that the First and Second Respondents did not conduct themselves in accordance with the high standards required from an Attorney in that they falsely deny allegations contained in the founding affidavit and therefore lacks the bones mores required of them.

[53] In response to the allegation that they failed to submit their Rule 70 auditor’s reports and that they are practising without being in possession of valid fidelity fund certificates, First and Second Respondents states:-

“It is not known as to why the application is brought against the First and Second Respondents because Fidelity Fund Certificates have been issued by the Applicant.”

See:- Paragraphs 14.3 of the Answering Affidavits of First and Second Respondents respectively.

[54] As stated earlier on, First and Second Respondents submitted their Rule 70 auditor’s reports on 21 April 2006 and fidelity fund certificates were issued to them on the same date. It goes without saying that for the period 01 January 2006 to 21 April 2006 they have been practising without fidelity fund certificates. It means that at the time when they deposed to their respective answering affidavits on 31 March 2006 they knew very well that they did not have valid fidelity fund certificates but stated the contrary in those affidavits.

[55] If they were in possession of valid fidelity fund certificates one wonders why they had to apply subsequently for it and even demand that it be issued, knowing very well that this application is pending before Court in which it is alleged inter alia that they are not in possession of valid fidelity fund certificates.

[56] The only conclusion that I can come to is that the First and Second Respondents attempted to mislead the Court by making false statements under oath.

[57] As officers of the Court, it is expected of the First and Second Respondents not to mislead the Court but to be open, honest and frank with the Court.

[58] The stance adopted by the Third Respondent need also to be mentioned. The Third Respondent, being the Law Society of Bophuthatswana, and a similar organisation as the Applicant, did not maintain a neutral stance or assist the Applicant in disciplining its members.

[59] Instead, it appears from the affidavit filed on behalf of the Third Respondent that it sided with the First and Second Applicant to the extent that it is stated that the deponent to the founding affidavit of the Applicant is misleading the Court by stating under oath that First and Second Respondents are practising without fidelity fund certificates.

See:- Paragraphs 12.1 and 12.3 of Third Respondents Answering Affidavit.

[60] In paragraph 12.2 of the answering affidavit deposed to on behalf of the Third Respondent by Robert Vusi Matlhare the following is stated:-

“12.2 There is no evidential proof that the First and Second Respondents misappropriated the trust monies and this [is] malicious as Applicant is praying for suspension and ultimately striking off without proof of any misappropriation and this application is nothing else but a witch hunt by the Applicant on Third Respondent’s members. There are attempts by applicant to the Third Respondent and its members under its jurisdiction and one of the such attempt is attached Memorandum on the objects of the Attorneys Amendment Bill 2005 marked MM4 more in particular on its page 2 under consulted the Third Respondent was never consulted but it reflects that all Law Society have been consulted. There have been numerous attempts to by the Third Respondent to say that the Respondents institutes disciplinary hearing against its members (see attached resolution MM5).”

[61] This is indeed a loaded statement on behalf of a similar organisation who have the task of maintaining a high standard of professionalism within the Attorneys profession.

[62] There is no indication that the Third Respondent conducted an investigation that enables it to make such a positive statement that there is no proof of misconduct (of any sort) - in particular the misappropriation of trust monies.

[63] Third Respondent even goes as far as to state positively that First and Second Respondents were in possession of valid fidelity fund certificates when it is in fact not true.

[64] Law Societies are not rivals. They are supposed to co-operate with one another in an attempt to uphold the high standard of professionalism expected of its members.

[iv] Complaints against First and Second Respondents:

[65] There are also several complaints levelled against First and Second Respondents with the Applicant. I will now deal with some of these complaints.

[a] Complaint:- S.G. Mashilo:

[66] [i] After having been involved in a motor vehicle collision, Mashilo instructed the Second Respondent to institute a third party claim on his behalf. After finalisation of the matter, the Road Accident Fund (RAF) paid an amount of R55 039-50 to the firm on 28 August 2001. The First and Second Respondents failed to account to Mashilo in respect of these monies.

[ii] During August 2001 the First and Second Respondents paid Mashilo an amount of R2 000-00. Later during the same month, Mashilo was furnished with a second cheque also in the amount of R2 000-00. During September 2001 the First and Second Respondents paid Mashilo a further amount of R8 500-00. The abovementioned payments were made by way of cash cheques.

[iii] Upon inquiry from the RAF, Mashilo was advised that an amount of R50 000-00 together with costs in the amount of R5 039-50 was paid by the RAF to the firm of the First and Second Respondents on 28 August 2001.

[iv] The Applicant referred the particulars of the complaint to the Second Respondent on 11 December 2003 and requested him to comment thereon and to furnish the Applicant with a copy of the firm’s final statement of account. Applicant never received a satisfactory reply.

[v] The Applicant then decided to institute disciplinary proceedings and notify the Second Respondent on 11 July 2005 to appear before a disciplinary committee of the Council of the Applicant. The Second Respondent failed to attend these proceedings.

[67] It is apparent that the Second Respondent contravened the Attorneys Act and Rules in that:-

[i] he failed to account to his client;

[ii] he delayed payment of the trust money to the client;

[iii] he failed to attend properly to instructions;

[iv] he failed to reply to correspondence;

[v] the money is not available in the trust banking account;

[vi] he made payments in instalments to his client.

[b] Complaint:- G. Mahlangu:

[68] [i] Mahlangu instructed the Second Respondent to act on his behalf in a civil claim. Second Respondent collected certain monies on Mahlangu’s behalf from the defendant but he failed to advise Mahlangu of the amount so collected. He paid Mahlangu an amount of R4 188-20 but failed to furnish him with a statement of account. Mahlangu learnt that the matter was settled for an amount of R10 000-00.

[ii] The Applicant referred the particulars of the complaint to the Second Respondent and requested him to furnish it with a copy of his statement of account. The Second Respondent failed to comply with this request.

[iii] It is apparent that Second Respondent:-

[a] failed to account to his client;

[b] delayed payment of the trust money;

[c] failed to attend to an instruction properly;

[d] failed to comply with a request of the Law Society.

[c] Complaint:- N.S. Nhleko:

[69] [i] Nhleko instructed the Second Respondent to act on her behalf in a claim in respect of pension monies due to her deceased son. The Second Respondent took possession of Nhleko’s bank card and pin number and used the bank card to withdraw money in the amount of R14 000-00 from Nhleko’s bank account.

[ii] According to Nhleko, Second Respondent was not entitled to withdraw this amount and the matter was reported to the police.

[d] Complaint:- J.O. Buda:

[70] [i] Buda instructed First Respondent to proceed further with a civil claim on his behalf after his motor vehicle was damaged due to a collision.

Buda paid an amount of R1 000-00 to the First Respondent.

[ii] The First Respondent failed to account properly to Buda. Buda also learnt subsequently that defendant was paying off the judgment debt in instalments of R200-00 per month.

[iii] Buda never received response to the inquiries he directed to the firm of the First and Second Respondents.

[e] Complaint:- P.F. Kunene:

[71] [i] Kunene instructed the First Respondent to assist her in the winding up of the estate of her late husband, Mr D. H. Seoketsi.

[ii] No progress report was received from the First Respondent. He also did not cooperate with the other firm of Attorneys subsequently appointed by Kunene.

[f] Complaint:- J.M. Molefe:

[72] [i] Molefe instructed the First Respondent to institute a third party claim on behalf of the daughter of her late sister.

[ii] After finalisation of the claim the RAF paid the amounts of R40 000-00 and R33 727-00 to the firm on 20 December 2004 and 16 May 2005 respectively. The First Respondent retained these monies and failed to account to Molefe.

[iii] First Respondent also failed to reply to the request of the Applicant to respond to the complaint.

[g] Complaint:- D.S. Motshephe and the attempted inspection of accounting records:

[73] [i] After receiving a complaint against First and Second Respondent from D.S. Motshephe to the effect that they have failed to pay trust monies to her, Applicant resolved that an inspection of the accounting records of the First and Second Respondents must take place in terms of Section 71 of the Attorney’s Act.

[ii] Mr Deleeuw Swart was tasked to conduct the inspection which he endeavoured to do but was refused an appointment.

[iii] Ms D.S. Motshephe instructed First and Second Respondents to institute a claim for damages on her behalf against Mr J. Molepo. The amount of damages was determined by the Court at R100 350-00 but together with costs and interest the amount was totalling R163 173-60.

[iv] First and Second Respondent’s firm paid an amount of R53 350-00 to her and failed to account to her in respect of the balance in the amount of R109 823-00. Payments were also made in instalments to her.

[v] Upon being called upon by the Applicant to respond to the complaint by Motshephe, the First and Second Respondent responded by a letter, with the following contents:-

“In terms of the Law Society of Bophuthatswana which has power by virtue of an Act of Parliament, had jurisdiction on myself. I do not find any reason to respond directly to yourselves.

There shall be no further communications between ourselves.”

[vi] This was also the basis for refusing Mr Swart an appointment. It seems to me as though the First and Second Applicant wanted to hide behind the thought that only the Third Respondent exercise jurisdiction over them and not the Applicant. Their action was based on a circular which the Third Respondent circulated amongst its members to the effect that their members should refrain from corresponding with the Law Society of the Northern Provinces.

[74] As stated earlier, Law Societies are not rivals. They need to cooperate to uphold the good standard of practice of the Attorneys’ profession.

[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.

[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.

[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 and Second Respondents and secondly it is an application to strike the First and Second Respondents from the roll of Attorneys, what is now before me is the first part. However, in both instances, the First and Second Respondents are called upon to reply to the allegations and thereby given a chance to present their cases.

E. Conclusion:

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

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

[83] I am satisfied that a case has been made out for the interim relief sought.

F. Costs:

[84] I am of the view that costs should follow the result and that the Applicant is entitled to an order for costs.

[85] Due to the stance adopted by the Third Respondent in siding with the First and Second Respondents and their involvement in this matter, I am of the view that it will be just and fair that they be ordered to pay the costs jointly and severely with the First and Second Respondents. It need to be mentioned that Third Respondent was initially cited in these proceedings merely as an interest party and no relief was claimed against it, but they did not remain neutral – instead, they vehemently opposed the application and became very actively involved.

[86] Consequently the following order is made:-

[1.1] that the forms and service provided for in the Uniform Rules be dispensed with and that the matter be treated as an urgent application in terms of Rule 6 (12) (a);

[1.2] that Tsegofatso Christopher Mogami (hereinafter referred to as the First Respondent) be suspended from practising as an Attorney of the above honourable Court, pending the final determination of this application;

[1.3] that Niclas Modise Ditshipi Mabuse (hereinafter referred to as the Second Respondent) be suspended from practise as an Attorney of the above honourable Court, pending the final determination of this application;

[1.4] that the Respondents surrender and deliver to the registrar of this honourable Court their certificates of enrolment as Attorneys of this honourable Court;

[1.5] should the Respondents fail to comply with the provisions of the preceding paragraph of this order on date of service of this order upon them, 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;

[1.6] that the Respondents be interdicted and prohibited from operating on their trust accounts as defined in paragraph 1.7 hereof;

[1.7] that Johan van Staden, the Head: Members’ Affairs of Applicant, be appointed as a curator to administer and control the trust account of Respondents, including accounts relating to insolvent and deceased estates and any deceased estate and any estate under curatorship connected with the Respondents’ practice as Attorneys and including, also, the separate banking accounts opened and kept by Respondents 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;

[1.7.1] immediately to take possession of the Respondents’ accounting records, records, files and documents as referred to in paragraph 1.8;

[1.7.2] 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 Respondents were acting at the date of this order;

[1.7.3] 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 Respondents in respect of monies held, received and/or invested by Respondents 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 Respondents was and may still have been concerned and which may have been wrongfully and unlawfully paid from the trust account(s) of Respondents, and to receive such monies and to pay same to the credit of the trust account(s);

[1.7.4] to ascertain from Respondents’ accounting records the names of all persons on whose account Respondents appears to hold or to have received trust monies (hereinafter referred to as trust creditors) and to call upon Respondents 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;

[1.7.5] 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 Respondents and, if so, the amount of such claim;

[1.7.6] 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;

[1.7.7] 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;

[1.7.8] in the event of there being any surplus in the trust account(s) of Respondents 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 Respondents, 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 Respondents 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 Respondents, if they are solvent, or, if Respondents are insolvent, to the trustee(s) of Respondent’s insolvent estate;

[1.7.9] in the event of there being insufficient trust monies in the trust banking account(s) of Respondents 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;

[1.7.10] 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

[1.7.11] to render from time to time, as curator, returns to the board of control of the fund showing how the trust account(s) of Respondents have been dealt with, until such time as the board notifies him that he may regard his duties as curator as terminated;

[1.8] that Respondents immediately deliver their accounting records, records, files and documents containing particulars and information relating to:

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

[1.8.2] any monies invested by Respondents in terms of Section 78(2) and/or Section 78(2A) of Act No 53 of 1979;

[1.8.3] any interest on monies so invested which was paid over or credited to Respondents;

[1.8.4] any estate of a deceased person, or any insolvent estate, or any estate placed under curatorship of which Respondents are the executors, trustees or curators or which Respondents are administering on behalf of the executor, trustee or curator of such estate; and

[1.8.5] 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, Respondents shall be entitled to have access to them but always subject to the supervision of such curator or his nominee;

[1.9] that should Respondents 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 Respondents (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;

[1.10] that the curator shall be entitled to:

[1.10.1] 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 Respondents, 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;

[1.10.2] 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 Respondents and/or Respondents’ clients and/or fund in respect of money and/or other property entrusted to Respondents 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;

[1.11] that Respondents, within one (1) year of they 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 them (Respondents) in respect of his former practice, and should they fail to do so, they 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;

[1.12] 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;

[1.13] that the Respondents are ordered to pay the costs of the 04th May 2006 for the application to have the matter removed from the roll, jointly and severally, the one paying the other to be absolved;

[1.14] that the First and Second Respondents are ordered to pay the costs of the application for leave to appeal jointly and severally, the one paying the other to be absolved;

[1.15] that the Respondents (First, Second and Third) are ordered to pay the costs of portion A of the application jointly and severally, the one paying the other to be absolved.

R D HENDRICKS

JUDGE OF THE HIGH COURT

Attorneys for the Applicant: MINCHIN & KELLY INC.