Law Society of the Northern Provinces v Oosthuizen (26374/2016) [2018] ZAGPPHC 848 (21 December 2018)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1) NOT REPORTABLE

(2) NOT OF INTEREST TO OTHER JUDGES

(3) REVISED.

Case No: 26374/2016

21/12/2018

In the matter between:

THE LAW SOCIETY OF THE NORTHERN PROVINCES Applicant

and

BAREND OOSTHUIZEN

Respondent

JUDGMENT

D S FOURIE, J:

[1] This is an application for the setting aside of a finding, decision and sentence imposed by a disciplinary committee of the applicant on 15 May 2014 and for the removal of the respondent's name from the roll of attorneys in terms of section 22(1)(d) of the Attorneys' Act, No 53 of 1979. The application is opposed by the respondent.

[2] The respondent is 59 years old. He was admitted as an attorney on 11 June 1991 and his name is still on the roll of attorneys. He is currently practising as a single practitioner for his own account in Pretoria.

[3] The facts and circumstances which caused the applicant to bring this application are, inter alia, the respondent's alleged misappropriation of trust funds in an amount of approximately R1 million, his failure to keep proper accounting records in respect of his practice and his failure to account properly to clients.

BACKGROUND

[4] After the applicant had received a complaint against the respondent, an auditor was instructed to investigate the complaint and to conduct an inspection of the respondent's accounting records and practice affairs. The auditor executed his mandate and reported to the applicant in writing on 8 April 2013.

[5] The auditor found that the respondent contravened the following provisions of the Attorneys' Act and the applicant's rules:

(a) Rule 68.5 due to the fact that the respondent failed to regularly and promptly update his accounting records;

(b) Rules 68.1 and 68.2 due to the fact that the respondent failed to keep such accounting records as were necessary to represent the firm's financial position fully and accurately;

(c) Rule 69.7.1 due to the fact that the respondent failed to, at intervals of not more than three calendar months, extract a list of the firm's trust creditors and to compare the total of the list with the firm's trust cash position;

(d) Section 78(1) of the Attorneys' Act read with Rule 69.3.1 due to the fact that the total amount of money in the firm's trust banking account and trust investment accounts were less than the total amount of the credit balances of the firm's trust creditors;

(e) Rule 68.7 due to the fact that the respondent failed to, within a reasonable time after the performance or earlier termination of his mandate, account to his clients; and

(f) Rule 68.8 due to the fact the respondent delayed the payment of trust funds to his clients.

[6] The applicant referred a copy of the auditor's report to the respondent and requested him to comment thereon. He furnished the applicant with his written comments on 24 June 2013.

[7] The respondent admitted the majority of the auditor's findings. In explanation for his conduct, the respondent referred to a traumatic armed robbery which occurred at his house on 14 August 2010 during which he was held at gunpoint and assaulted. As a result of this event the respondent suffered from post-traumatic stress disorder which caused him to neglect the financial affairs of his practice. He also explained that he had rectified the irregularities pertaining to his conduct.

[8] The respondent however denied the auditor's finding that there was a trust deficit in the amount of R1 044 073.25 at 1 February 2013. The applicant then referred the respondent's comments to the auditor for consideration. He advised the applicant that there were trust deficits in the respondent's bookkeeping at several month-ends and provided the applicant with a memorandum explaining and substantiating his finding of a trust deficit.

[9] The applicant then notified the respondent to appear before a disciplinary committee of the applicant on 15 May 2014 in order to answer to a contravention of six charges which are as follows:

(a) Charge 1: Contravention of Rule 68.5 in that his firm did not regularly and promptly update its accounting records;

(b) Charge 2: A contravention of Rules 68.1 and 68.2 in that his firm did not keep in an official language such accounting records as are necessary to represent fully and accurately the firm's financial position;

(c) Charge 3: A contravention of Rule 69.7.1 in that his firm did not, at intervals of not more than three months, extract a list of trust creditors and compare the total of the list with its trust cash position;

(d) Charge 4: A contravention of section 78(1) of the Act, read with Rule 69.3.1, in that the total amount in his firm's trust banking accounts and trust investment accounts are less than the total amount of the credit balances of the firm's trust creditors, reflecting a total deficit of R1 044 073.25 at 1 February 2012;

(e) Charge 5: A contravention of Rule 68.7 in that his firm did not within a reasonable time after the performance or earlier termination of any mandate, account to clients in writing;

(f) Charge 6: A contravention of Rule 68.8, in that his firm did not pay any amount due to a client within a reasonable time as he was supposed to do.

[10] The respondent submitted a written plea explanation setting out a repetition of the charges, the auditor's findings and the respondent's comments, where applicable. He pleaded guilty to all six the abovementioned charges and his legal representative pointed out that the auditor's report is accepted.

[11] The respondent, pursuant to his plea of guilty, was convicted as charged. This includes a finding of a trust deficit in the total amount of R1 044 073.25 as at 1 February 2012. In mitigation the respondent furnished the disciplinary committee with written submissions which included the following:

(a) He was 55 years of age;

(b) He has been practising as an attorney since 1995;

(c) He has had no professional assistants in his employ since approximately 2010;

(d) His staff was dependent on their income from his firm;

(e) He supported his mother and father who has lost his eyesight;

(f) His contraventions were not indicative of a permanent character flaw or dishonesty;

(g) His lapses were of an isolated nature and occurred as a result of the dramatic event when he had been held at gunpoint;

(h) His firm's trust creditors have been repaid; and

(i) The respondent admitted to his contraventions and wrongdoings.

[12] The applicant's pro forma prosecutor in turn referred the disciplinary committee to the content of the auditor's report and emphasised the fact that clients' trust funds were transferred to the respondent's business account, which appeared to amount to a rolling of trust funds and for that reason the matter ought to be referred to the council of the applicant in terms of Rule 101 to consider a suspension or striking application.

[13] The disciplinary committee indicated that it did not intend referring the matter to the council of the applicant in terms of Rule 101. After consideration of the facts and submissions, the disciplinary committee imposed a fine of R30 000.00, half of which was suspended for a period of three years on condition that the respondent did not commit similar transgressions during the period of suspension.

[14] After the disciplinary committee had finalised its enquiry, the council of the applicant considered all the facts and circumstances and then concluded that the disciplinary committee had erred and misdirected itself in its dealing with and consideration of an appropriate sanction. The council concluded that the disciplinary committee should have referred the matter to the council in terms of Rule 101 for purposes of considering whether an application for the striking of the respondent's name from the roll of attorneys, alternatively an application for his suspension, should be launched.

[15] The council invited the respondent to appear before it to address certain concerns and after due consideration of all the relevant circumstances, it was resolved on 8 February 2016 to launch the present application in terms of the provisions of section 72(6), read with section 22(1)(d) of the Act. The application was issued on 5 April 2016.

[16] In its founding affidavit the applicant again relies on a contravention of the same rules and section of the Attorneys' Act that were referred to in all six charges on which the respondent had already been convicted and sentenced. Mindful of the possibility that these proceedings will infringe on the respondent's "constitutional rights against double jeopardy and against being punished twice in respect of the same offence", it was decided by the applicant to first apply that the finding, decision and sentence imposed by the disciplinary committee on 15 May 2014 be set aside and then also to apply that the name of the respondent be struck from the roll of attorneys.

[17] During argument and after questions put by the Court, counsel for the applicant informed us that he had been authorised to abandon the relief sought in prayer 1 of the notice of motion (to set aside the finding, decision and sentence imposed by the disciplinary committee) and also that the applicant no longer relies on a contravention of the rules and section of the Attorneys' Act as referred to in Charges 1 to 6 on which the respondent had already been convicted and sentenced. It was made clear to us that these charges are no longer before this Court and we need not have to deal with them.

SUBMISSIONS IN THIS COURT

[18] Counsel for the applicant nevertheless persisted that an order striking the respondent's name from the roll of attorneys should be granted. He argued that, notwithstanding the fact that the applicant no longer relies on a contravention of the rules and section of the Act as referred to in Counts 1 to 6 the respondent had misled the disciplinary committee as to the real reason for the deficit in his trust account. He pointed out that according to the record of proceedings of the disciplinary committee, the following explanation was given in this regard:

"... At no stage was it the intention to transfer from the trust account of the firm any more than, that which the firm would have been entitled to as fees and insofar as such transfers have happened they were inadvertent and they have been remedied from own funds. The own funds he obtained on credit or a loan from family and the trust position has been rectified ... ".

[19] In his answering affidavit the respondent gave the following explanation in this regard:

" Serious financial problems started cropping up resulting therein that I utilised trust monies by giving instructions to transfer amount to my business in order to keep my practice and myself financially afloat. With hindsight, I realise that I did so because I avoided being burdened with decisions ... I started lying to my clients about the finalisation of the matters."

[20] Counsel for the applicant contended that according to the latter explanation the deficit in the respondent's trust account had not been caused by "inadvertent" transfers, but by a decision of the respondent to utilise trust monies to keep his practice and himself financially afloat. This misappropriation of trust funds and the fact that he lied to his clients, so the argument goes, are both an indication of dishonesty - sufficient to strike the respondent's name from the roll of attorneys.

[21] Counsel for the respondent contended that the applicant is functus officio as the decision, findings and sentence of the disciplinary committee were in accordance with the provisions of the Attorneys' Act and was concluded after a due and proper process was followed during those proceedings. It was also submitted that, should this Court find there is no merit in the defence of functus officio, exceptional circumstances exist which do not warrant either the suspension or the removal of the respondent's name from the roll of attorneys.

THE FUNCTUS OFFICIO ARGUMENT

[22] The term functus officio means to be no longer in office or having discharged his office (Hiemstra & Ganin, Trilingual Legal Dictionary, 3rd Ed). This doctrine is founded upon the principle of finality. In Minister of Justice v Ntuli [1997] ZACC 7; 1997 (3) SA 772 (CC) at par [23] the Court stated that public policy demands that the principle of finality in litigation should generally be preserved rather than eroded. Hoexter, Administrative Law in South Africa, 2nd Ed , p 278 points out that the functus officio doctrine applies only to final decisions, so that a decision is revocable before it becomes final. Finality is therefore a point arrived at "when the decision is published, announced or otherwise conveyed to those affected by it". However, as was pointed out by Navsa J (as he then was) in Carlson Investments Share Block v Commissioner, SARS 2001 (3) SA 210 (WLD) at 232F our law and comparable legal systems recognise that statutes may provide how and when a decision is to be finalised and may provide for revisiting of a particular administrative decision in the public interest and in the interests of justice.

[23] In terms of section 67(2) of the Attorneys' Act the council of the applicant may amend or withdraw any decision of any committee appointed by it, provided that if a council has assigned to a committee the power to enquire into any case of alleged unprofessional or dishonourable conduct and to impose a punishment in respect thereof, "the council/ shall not amend or withdraw any decision arrived at or anything done by such committee in terms of the power so assigned".

[24] The council's disciplinary powers are set out in section 72(1). In terms thereof a council conducting an enquiry in terms of section 71 may find the person concerned guilty of unprofessional or dishonourable conduct and may, in the case of a practitioner, impose a fine not exceeding R100 000.00 as one of the disciplinary powers assigned to the council. Subsection (6) provides that the "provisions of this section shall not affect the power of -

(a) a society to apply in terms of the provisions of this Act for the suspension from practice or the striking from the roll of any practitioner against whom an enquiry is being or has been conducted in terms of this Act in respect of the conduct which forms or formed the subject-matter of such enquiry;

(b) a competent Court, at the instance of the society concerned, to suspend any practitioner from practice or to strike him from the roll."

[25] It is clear that "the provisions of this section" include a reference to subsection (1) in terms whereof the person concerned may be convicted and sentenced. This means that the words "against whom an enquiry is being or has been conducted" as they appear in subsection (6)(a) refer to an enquiry not yet finalised or to an enquiry which has already been finalised, i.e.

where the person concerned has been convicted and sentenced.

[26] In this matter the enquiry against the respondent has been finalised as he was convicted and sentenced by the disciplinary committee. However, in terms of section 72(6)(a) and (b) the applicant is authorised by statute to apply, in terms of the provisions of the Attorneys' Act, for the suspension from practice or the striking from the roll of the respondent's name and this Court is likewise empowered to grant such an order when necessary. Furthermore, the complaint now before Court (alleged dishonesty with regard to misappropriation of trust money) is not the same as the charges on which the respondent was convicted. The issue now relates to the question of dishonesty and not whether the transfer of trust money was done "inadvertently" The defence of functus officio is therefore without any merit.

DISCUSSION

[27] Section 22(1)(d) of the Attorneys Act provides that an attorney may on application by the society concerned be struck off the roll or suspended from practice by the Court if he or she, in the discretion of the Court, is not a fit and proper person to continue to practise as an attorney. In exercising its discretion, the Court is faced with a three stage enquiry. The Court first decides as a matter of fact whether the alleged offending conduct has been established. If the answer is yes, a value judgment is required to decide whether the person concerned is not a fit and proper person as envisaged in section 22(1). If the answer is again in the affirmative, the Court must decide in the exercise of its discretion whether, in all the circumstances of the case, the person in question is to be removed from the roll or merely suspended from practice (Law Society of the Cape of Good Hope v Budricks 2003 (2) SA 11 (SCA) at 13J - 14A). The facts upon which the Court's discretion is based, should be considered in their totality, and the Court must not consider each issue in isolation (Bevers v Pretoria Balieraad 1966 (2) SA 593 (A) at 6068).

[28] In deciding on whichever course to follow, the Court is not first and foremost imposing a penalty. The main consideration is the protection of the public (Malan v The Law Society of the Northern Provinces [2008] ZASCA 90; [2009] 1 All SA 133 (SCA) par 7). The Court in the Malan case also pointed out (in par 8) the following:

"Second, logic dictates that if a Court finds that someone is not a fit and proper person to continue to practise as an attorney, that person must be removed from the roll. However, the Act contemplates a suspension. This means that removal does not follow as a matter of course. If the Court has grounds to assume that after the period of suspension the person will be fit to practise as an attorney in the ordinary course of events it would not remove him from the roll but order and appropriate suspension ... (l)t is implicit in the Act that any order of suspension must be conditional upon the cause of unfitness being removed. For example, if an attorney is found to be unfit of continuing to practise because of an inability to keep proper books, the conditions of suspension must be such as to the deal with the inability. Otherwise the unfit person will return to practice after the period of suspension with the same inability or disability."

[29] An attorney is a member of a learned, respected and honourable profession and, by entering it, pledges himself with total and unquestionable integrity to society at large, to the Courts and to the profession. The law expects from an attorney the highest possible degree of good faith in his dealings with his client, the public and the Court. This implies that an attorney's conduct, submissions and representations must at all times be accurate, honest and frank.

[30] The first question now to be considered is whether the alleged offending conduct has been established? The respondent's explanation in his answering affidavit with regard to why there was a trust deficit in his trust account is almost the opposite as his explanation before the disciplinary committee. He has now confessed, for the first time, that he caused trust money to be transferred to his business account "in order to keep my practice and myself financially afloat". This also caused him to tell lies to his clients. No doubt, the respondent conducted his practice in a dishonest manner.

[31] I now have to consider whether the respondent is not a fit and proper person as envisaged in section 22(1) of the Attorneys' Act. As pointed out above, a value judgment is required taking into account all the proven facts and relevant circumstances. Looking at them holistically, the following can be inferred from the conduct of the respondent:

(a) Unauthorised transfers from his trust account to his business account had been done deliberately;

(b) This conduct had the potential to severely prejudice his clients and to put the fidelity fund of the applicant at risk;

(c) His conduct indicates, generally speaking, that he failed to maintain a professional standard with regard to his practice and his duty towards his clients as well as the applicant;

(d) He failed to be accurate, honest and frank at all times.

[32] As already pointed above, an attorney is a member of a learned, respected and honourable profession. The law expects from an attorney the highest possible degree of good faith in his dealings with his clients, the public and the Court. If I compare this requirement with the conduct of the respondent, I am of the view that he is not a fit and proper person as envisaged in section 22(1) of the Attorneys' Act.

[33] That brings me to the question whether, in all the circumstances of this case, the respondent is to be removed from the roll or merely suspended from practice. To exercise my discretion properly, and as a starting point, I take into account the following facts and circumstances:

(a) the fact that the respondent was dishonest;

(b) there was a trust deficit of approximately R1 million;

(c) the explanation that his firm's trust creditors have been repaid;

(d) the fact that he admitted to his contraventions and wrongdoings in his answering affidavit;

(e) the fact that he had already been disciplined by the applicant's disciplinary committee, albeit with regard to charges not now before this Court.

[34] I also have to consider the question, taking into account the relevant facts and circumstances, whether the respondent's dishonesty should be regarded as a permanent character defect. There is no evidence to indicate that the respondent had been dishonest at any other stage during his professional career, either prior to or after the events in question, which occured almost six years ago. The respondent has given a long explanation in his answering affidavit with regard to the fact that he was a victim of an armed robbery that took place during August 2010. Attached to one of his earlier responses is a copy of a psychological report dated 12 June 2013 and prepared by Ms Du Toit Steele, a clinical psychologist. The concluding paragraph of this report reads as follows:

"Mr Oosthuizen suffers from post-traumatic stress disorder due to an armed robbery in 2010. As a result of the disorder, he suffered from avoidance and numbing, increased anxiety and arousal and re­ experienced the traumatic event. This led him to relocating to an environment where he felt safe, but it also led him neglecting the financial affairs of his private practice. He has corrected the financial wrongs of the past and has committed himself to once again upholding his professional duties as a lawyer, and to ongoing treatment and support for his PTSD. ... I have confidence that he will be scrupulous in his attention to the financial matters of his practice, and that similar incidents will not occur in future ... ".

[35] In his answering affidavit the respondent refers to his consultations with Ms Du Toit Steele as well as the taking of medication. It therefore appears that he has subjected himself to treatment. He also pointed out that he seeks no excuses and admits that what he has done was wrong.

[36] When considering the question whether or not the respondent's dishonesty should be regarded as a permanent character defect, I take into account the evidence referred to above. I do not get the impression that the evidence goes that far as to show that his character is so inherently flawed that he will necessarily continue to be dishonest. To me it appears that his dishonesty should be regarded as a lapse that occurred partly as a result of the dramatic event that occurred during August 2010. However, this matter is to a certain extent complicated by the fact that the dishonesty already took place during 2013. Thereafter, he was subjected to a disciplinary enquiry during May 2014. This application was only issued during April 2016 whereafter this matter came before us during October 2018. In the meantime the respondent has still been practising as an attorney for almost six years until now. However, it should also be pointed out that the issue of his dishonesty was only disclosed by himself for the first time in his answering affidavit dated 6 June 2016. Therefore, this Court should not be concerned too much about the long time lapse, although this is

a factor that should be borne in mind.

[37] Taking into account the nature of the respondent's conduct, his explanations and the opinion of Ms Du Toit Steele, I am of the view that a period of one year suspension would be sufficient to bring home to the respondent the seriousness of his misconduct. Although this was a serious error, it is, in my view, unlikely to happen again (cf Law Society. Cape v Peter 2009 (2) SA 18 (SCA) par 22, 31 and 35). It is therefore not necessary that the order of suspension be made conditional upon "the cause of unfitness being removed" as was suggested in Malan v The Law Society of the Northern Provinces, supra.

ORDER

I therefore grant the following order:

1. The respondent is suspended from practising as an attorney of this Court for a period of one year calculated from date of this order;

2. The respondent shall immediately deliver his certificate of enrolment as an attorney to the Registrar of this Court to be held in safekeeping for the duration of the suspension;

3. The respondent is prohibited from handling or operating his trust account(s) during the period of his suspension;

4. 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 account(s) of respondent, including accounts relating to insolvent and deceased estates 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 account(s)"), with the following powers and duties:

4.1. immediately to take possession of respondent's accounting records, records, files and documents 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;

4.2. 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 account(s), 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 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);

4.3. to ascertain from respondent's account 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"); 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;

4.4. 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;

4.5. 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 right of access to the civil courts;

4.6. 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;

4.7. 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 incurred by the applicant, 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;

4.8. 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;

4.9. 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 person(s) where considered necessary, to assist him in carrying out his duties as curator; and

4.10. 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.

5. That respondent immediately delivers his account records, records, files and documents containing particulars and information relating to:

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

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

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

5.4. 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;

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

5.6. 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;

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

5.8. 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

5.9. respondent's practice as an attorney of this Court,

to the curator, provided that, as far as such account 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;

6. 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 day 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 account 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 the curator;

7. That the curator shall be entitled to:

7.1. 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;

7.2. require from the persons referred to in paragraph 7.1 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;

7.3. publish this order or an abridged version thereof in any newspaper he considers appropriate; and

7.4. wind-up of the respondent’s practice;

8. That respondent be and is hereby removed, during the period of suspension, from office as -

8.1. 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);

2.5cm; margin-right: 0.04cm; text-indent: -1.2cm; margin-bottom: 0cm; line-height: 150%"> 8.2. 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;

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

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

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

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

8.7. administrator appointed in terms of section 74 of the Magistrates' Court Act, No 32 of 1944;

9. The respondent is ordered to pay the costs of this application on an attorney and client scale.

DS FOURIE

JUDGE OF THE HIGH COURT

PRETORIA

I AGREE

M.M MUNZHELELE

ACTING JUDGE OF THE HIGH COURT