Law Society of the Northern Provinces v Rikhotso and Another (2076/2009) [2011] ZANWHC 14 (24 March 2011)

NORTH WEST HIGH COURT, MAFIKENG

CASE NO.: 2076/2009

In the matter between:-

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

(Incorporating the Law Society of the Transvaal)

and

RELEBOGILE MAFRIKA RIKHOTSO …..........................................1st Respondent

THE LAW SOCIETY OF THE NORTH WEST …..............................2nd Respondent

(Incorporating the Law Society of Bophuthatswana)

JUDGMENT

GURA J

INTRODUCTION

[1] This is an application to suspend the first respondent from practising as an attorney of this Court. There are also prayers for ancillary relief. The first respondent was practising as an attorney under the name and style Lebo Rikhotso Attorneys at House No. 2006, Mpolokeng Street, Zone 2, Ga Rankuwa. No relief is sought against the Second Respondent.

OFFENCES ALLEGEDLY COMMITTED BY THE FIRST RESPONDENT

[2] The facts and circumstances which prompted the applicant (the Law Society) to bring this application to the Court include the following:

2.1 Failure to submit his Rule 70 auditor’s reports to the applicant in accordance with the Law Society’s Rules;

2.2 Practising as an attorney without a fidelity fund certificate;

2.3 Failure to handle instructions received from clients properly and responsibly;

2.4 Failure to account to his clients in terms of the Law Society’s Rules;

2.5 Failure to cooperate with the applicant and to furnish it (the applicant) with his complete accounting records for purposes of an inspection thereof;

2.6 Failure to keep proper accounting records in respect of his practice and contravention of several provisions of the Attorneys Act, No.53 of 1979, the Bophuthatswana Attorneys, Notaries and Conveyancers Act, No.29 of 1984 (the Bop Act), the Law Society’s Rules and the Bop Rules;

2.7 Misappropriation of trust funds; and

2.8 Failure to reply to correspondence addressed to him by clients and the applicant.

The full details of the first respondent’s alleged misdemeanour are set out below.

APPLICATION TO COMPEL

[3] The applicant received two complaints, it instructed a chartered accountant and auditor, Mr Deleeuw Swart to conduct an inspection of first respondent’s accounting records. First respondent failed to cooperate with the applicant and he did not hand his books over to Swart for inspection.

Rule 70 auditor’s report

[4] As at the date of the launch of this application, first respondent had failed to submit any Rule 70 auditor’s report to the applicant. In terms of Rule 89.11 this conduct amounts to unprofessional, dishonourable or unworthy conduct. (Within 6 months from the end of February, an attorney must submit to the Law Society the Rule 70 report, i.e. it must be lodged with the Law Society on or before 31 August of each year).

Fidelity fund certificate

[5] Before the applicant may issue a Fidelity Fund Certificate to an attorney, it must have received a Rule 70 auditor’s report. First respondent continued to practice without a Fidelity Fund Certificate in contravention of Section 41(1) of the Attorneys Act.

Complaint: Mr B D Mathekga

[6] The applicant received a complaint dated 17 October 2005 from Mathekga. The essence of the complaint is the following:-

Mathekga instructed the first respondent during September 2002 to collect moneys from Mathekga’s debtor. The first respondent did not advise Mathekga on the legal costs in the matter. Mathekga paid the first respondent an initial amount of R100,00 and a further amount of R3 300,00 in instalments during the period 9 October 2002 to 31 May 2004. The first respondent failed to furnish Mathekga with progress reports.

[7] According to the applicant, although Mathekga’s complaint is nonsensical in several respects, it appears therefrom that the first respondent failed to execute his instruction properly and to Mathekga’s satisfaction. The first respondent most probably failed to account to Mathekga in terms of the provisions of Rule 68.7 (The corresponding Rule of the Bop Rules is Rule 49(1)).

Complaint: Mr L Mmakola

[8] In a written complaint dated 23 September 2004 Mmakola alleged that on 24 November 2003 he instructed the first respondent to act on his behalf after he had been unfairly dismissed by the Lion Match Company. He paid the first respondent a deposit in the amount of R3 000,00. The first respondent failed to address any letters to Mmakola and to advise him on the progress in the matter. In short, the first respondent failed to handle his instruction properly.

[9] The applicant referred the particulars of the complaint to the first respondent and received his reply on 14 January 2005.

Attempted inspection of accounting records

[10] The applicant learnt that first respondent was practising as an attorney at Ga Rankuwa in the North West. In March 2005 it (the applicant) resolved that an inspection of first respondent’s accounting records must be carried out by Swart.

[11] Swart scheduled a meeting with first respondent for his inspection on 27 July 2005 but on 26 July first respondent cancelled the appointment telephonically. His view was that Swart would not be allowed to visit his firm to inspect the firm’s accounting records. First respondent alleged that the applicant had no jurisdiction over him and that the Law Society of Bop had such power. Swart’s secretary, asked him to direct a letter to the applicant detailing the reasons for his objection against the proposed inspection. He never sent that letter.

[12] On 10 August 2005, Swart’s secretary telephoned first respondent and again requested him to send the letter to the applicant, dealing with the reasons for his failure to cooperate with the Law Society and to allow Swart to inspect his firm’s accounting records. He refused to comply.

[13] The applicant, suspecting that he failed to keep his accounting records in terms of Section 78(4) and Rule 48, and that he failed to conduct his trust account in terms of Section 78(1) of the Attorneys Act, obtained an order to compel from this Court on 8 June 2006. Its material terms are as follows:-

“IT IS ORDERED

1. that Relebogile Mafrika Rikhotso, (hereinafter referred to as respondent), who practises as an attorney for his own account under the style of Lebo Rikhotso Attorneys at House 2006, Mpolokeng Street, Zone 2, Ga-Rankuwa, is hereby ordered to produce for inspection, either by applicant itself or by a person authorised thereto by applicant, his accounting records which relate to his practice as an attorney, and which contain particulars and information of any money received, held or paid by him for on account of any person, which accounting records shall include any books, records, documents or things kept by or in the custody or under his control which relate to:-

1.1 money invested in a trust savings or other interest bearing account referred to in section 78(2) or section 78(2A) of the said Act;

1.2 interest on money so invested;

1.3 money belonging to any estate of a deceased person or any insolvent estate or any estate placed under curatorship, in respect of which respondent is the executor, trustee or curator or which he administer on behalf of the executor, trustee or curator as envisaged in section 78(6) of the Act;

1.4 respondent’s practice;

2. that, failing compliance by respondent with paragraph 1 of the order within seven days after demand, the relevant sheriff be and is hereby authorised to take into possession any item mentioned in paragraph 1, wherever such may be found, and to hand it to applicant for purposes of an inspection as referred to in paragraph 1;

3. that respondent be and is hereby ordered to pay applicant’s costs of this application on the scale as between attorney and client;

4. . . .”

[14] Respondent heeded the Court order indeed because subsequently, Swart inspected his books. He visited first respondent on 10 July 2006 and he (respondent) advised him (Swart) that the firm’s accounting records were not kept up to date and that he required the services of an auditor in order to assist him with the processing and preparation of the firm’s accounting records. On 25 July 2006, Swart furnished first respondent with the particulars of an auditor. He undertook to discuss the problems of his bookkeeping system with his auditor and to contact Swart as soon as possible thereafter.

[15] Subsequently, first respondent attended a bookkeeping course presented by the Law Society on 26 and 27 July 2006.

[16] Swart proceeded with his investigation and visited the first respondent again on 2 October 2006. The first respondent advised Swart that the firm’s accounting records were in possession of the firm’s auditors and that he expected these auditors to submit the firm’s Rule 70 auditor’s report for the period ending 28 February 2006 within two weeks.

[17] Swart visited the first respondent again on 6 November 2006. The first respondent handed to Swart a handwritten set of accounting records which were written up until 28 February 2006. The first respondent furthermore advised Swart that he had appointed a new auditor to prepare the firm’s accounting records. On 6 November 2006 the firm’s accounting records were written up until 30 September 2006.

Upon Swart’s arrival at the firm the first respondent was studying the firm’s new accounting records. He advised Swart that the accounting records were incorrect and that the balances which he attempted to confirm, were incorrect. The first respondent studied the computer accounting records and found that it contained errors. These errors were due to bank reconciliation not having been done and the closing balances for one financial year not having been carried forward to the next financial year.

[18] He and Swart agreed that the firm’s handwritten accounting records were to be audited up until 28 February 2006 in order to enable the first respondent to submit his Rule 70 auditor’s report. He undertook to discuss the problem in the firm’s computer accounting records with his auditor in order to determine whether the errors could be corrected. He also undertook to contact Swart again as soon as these issues had been addressed.

REGISTRATION WITH THE LAW SOCIETY

[19] As at the time of Swart’s report (dated 15 November 2006), neither the firm nor the first respondent were registered with the applicant. First respondent undertook to have the required registration done with the Law Society and for that reason he would complete the relevant forms.

[20] Swart found that the first respondent contravened at least the following provisions of the Act and the Rules:

20.1 Rule 70.3 of the Rules due to the fact that the first respondent failed to submit his Rule 70 auditor’s report to the Law Society within the required time (Rule 56(1) and 57(1) of the Bop Rules);

20.2 Rule 68.1 and 68.2 of the Rules read with Section 78(4) of the Act due to the fact that the first respondent failed to keep proper accounting records in an official language of the Republic to represent its finances fully and accurately in accordance with generally accepted accounting practice (Rule 48.1 of the Bop Rules and Section 73(5)(a) of the Bop Act) and

20.3 Sections 41(1) and 41(2) of the Act due to the fact that the first respondent practised as an attorney without a fidelity fund certificate (Section 36(1) and (2) of the Bop Act).

According to Swart he was not yet in a position to comment on either the complaints or the status of the firm’s accounting records.

SWART’S FURTHER INSPECTION

[21] The applicant received further complaints against the first respondent as a result of which Swart was instructed to investigate the complaints and to inspect the firm’s accounting records. He visited the first respondent on 31 May and 9 October 2007 respectively. Prior to that, first respondent never made a report back to Swart as he had undertaken (as per paragraph No. 18 supra).

[22] On 31 May 2007 Swart conducted an audit of the firm’s trust accounting records for the period 13 November 2003 until 29 February 2004. He submitted the first respondent’s Rule 70 auditor’s report to the applicant on 1 June 2007. The report was unqualified. Swart visited the firm again on 9 October 2007. The first respondent advised him that the firm’s auditors by the name of Abakah & Company have completed the audits of the firm’s trust accounting records for the years ending 28 February 2005, 28 February 2006 and 28 February 2007 respectively. However, the firm’s auditors were allegedly not prepared to release the Rule 70 auditor’s reports due to the fact that their fees had not been paid by the first respondent.

[23] The abovementioned three Rule 70 auditor’s reports were subsequently submitted to the applicant on 15 August 2008, out of time and in contravention of Rule 70. The reports were unqualified. According to Swart the first respondent contravened at least the following provisions of the Act and the Rules.

23.1 Rule 68.4.2 of the Rules due to the fact that the first respondent removed his accounting records from his office (Rule 48(1)(b) of the Bop Rules);

23.2 Rules 68.1 and 68.2 of the Rules read with Section 78(4) of the Act due to the fact that the first respondent failed to keep proper accounting records (Rule 48(1) of the Bop Rules and Section 73(5)(a) of the Bop Act);

23.3 Rule 68.5 of the Rules due to the fact that the first respondent failed to regularly and promptly update his accounting records because these records had not been written up for more than one month (Rule 48(3) of the Bop Rules);

23.4 Rule 69.7.1 of the Rules due to the fact that the first respondent failed, at intervals of not more than three months, to extract a list of trust creditors and to compare the total of the list with the firm’s cash position (Rule 55(1) of the Bop Rules);

23.5 Rule 70.3 of the Rules due to the fact that the first respondent failed to submit his Rule 70 auditor’s report to the Law Society within the prescribed period (Rule 56(1) and Rule 57(1) of the Bop Rules) and

23.6 Sections 41(1) and 41(2) of the Act due to the fact that the first respondent practised as an attorney without a fidelity fund certificate (Sections 36(1) and 36(2) of the Bop Act).

[24] After a number of visits by Swart to the firm, it (the firm) was subsequently registered with the applicant on 27 February 2008. Swart refers to the fact that the first respondent contravened the provisions of Section 7(1) of the Act due to the fact that he practised as an attorney within the jurisdiction of the applicant whilst not registered as a member of the Law Society.

[25] The first respondent‘s accounting and supporting records were seldom available for inspection by Swart during his visits to the firm. Swart’s inspection was therefore limited.

Trust banking account

[26] The first respondent kept his trust banking account at the Rosslyn branch of ABSA Bank. On 29 February 2004 the abovementioned account reflected a credit balance of R40 729.76.

The trust position

[27] The first respondent failed to hand over to Swart the firm’s list of trust creditors’ balances or calculations of the firm’s trust position. This failure is a contravention of the provisions of Rule 69.7.1 of the Rules (Rule 55(1) of the Bop Rules) due to the fact that he failed, at intervals of not more than three calendar months, to extract a list of trust creditors and to compare the total of the list with the firm’s trust cash position.

The law society’s costs in the application to compel

[28] In the application to compel referred to above, the first respondent was ordered to pay the Law Society’s costs on the scale as between attorney and client. The first respondent undertook to pay the Law Society’s taxed costs in instalments and he paid the first instalment in the amount of R10 000.00 during or about February 2007. This instalment was paid by way of a trust cheque.

[29] During Swart’s visit to the firm 31 May 2007 the first respondent advised him that he had borrowed the amount of R10 000.00 referred to above from a client who was a trust creditor to the firm. Although the first respondent advised Swart that he concluded a loan agreement with the client, he was unable to produce the alleged agreement for inspection. Due to the fact that Swart was unable to conduct a thorough inspection of the firm’s accounting records, he was also unable to investigate the reasons for the trust payment, as furnished by the first respondent.

[30] According to Swart, the first respondent contravened the provisions of Rule 69.5 of the Rules (Rule 52(2) and Rule 52(3) of the Bop Rules) due to the fact that he did not ensure that withdrawals from this trust banking account were made only to or for or on behalf of a trust creditor, alternatively as transfers to his business banking account provided that such transfers shall be made only in respect of money due to the firm.

FURTHER ATTENDANCE

[31] The first respondent submitted his Rule 70 auditor’s report for the period ending 29 February 2008 to the Law Society on 16 January 2009, out of time. The report was unqualified. Swart visited the firm again on 25 August 2008. The first respondent persisted in his failure to produce his complete accounting records to Swart for the purpose of an inspection thereof. Despite numerous telephone calls by the Law Society to the first respondent from 25 August 2008 onwards, Swart was unable to arrange an appointment for the inspection of the firm’s accounting records. Swart contacted the first respondent telephonically on 20 February 2009. The receptionist advised Swart that the first respondent was not yet at the office, but that she expected him shortly. Swart left a message for the first respondent to the effect that he was to call Swart urgently in order to arrange an appointment. The first respondent failed to reply to Swart’s message.

[32] According to the applicant, the abovementioned conduct by the first respondent evidences a contravention of the following provisions of the Act and the Rules:

32.1 Section 70 of the Act (Section 65 of the Bop Act) due to the fact that the first respondent failed or refused to comply with a direction of the Law Society to produce his accounting records for inspection to a person authorised thereto;

32.2 Rule 89.25 of the Rules (Rule 76(24) of the Bop Rules) due to the fact that the first respondent failed to comply with an order, requirement or request of the Council; and

32.3 Rule 89.23 of the Rules (Rule 76(22) of the Bop Rules) due to the fact that the first respondent failed to reply to or to appropriately deal within a reasonable time with communication addressed to him and which reasonably requires a reply or response.

Complaint: Ms E Leepile

[33] The applicant received a written complaint from Dagada Incorporated Attorneys on behalf of Ms E Leepile (Leepile). The complaint is dated 4 March 2008. What follows are the details of the complaint.

[34] The first respondent was appointed as receiver and liquidator of the assets of the combined estate of Mr R Molefe and Ms M M Molefe. The Molefe’s were divorced on 25 March 2004. The first respondent sold a fixed property in the joint estate to Leepile for an amount of R260 000.00. Leepile obtained a bond in the amount of R260 000.00 in order to purchase the property. The transfer of the property into Leepile’s name was registered on 12 September 2006. Attorney Stephan Fourie attended to the transfer of the property. On 4 October 2006 attorney Fourie accounted to the estate, represented by the firm of the first respondent. On 3 October 2006 attorney Fourie paid the proceeds of the purchase price in the amount of R220 881.70 by way of an electronic transfer into the first respondent’s firm’s trust banking account.

[36] On 18 September 2007 Dagada Incorporated, on behalf of Leepile, addressed a letter to attorney Fourie, informing him that the seller was still occupying the property and that Leepile was therefore unable to take occupation thereof. In the meantime, Leepile had to pay the bond instalments. Attorney Fourie advised Dagada Incorporated on 4 October 2007 that the first respondent had paid an amount of R22 000.00 into the bond account of Leepile.

[37] On 8 October 2007 attorney Fourie advised Dagada Incorporated that the firm had an agreement with Leepile that she would pay the bond instalments until such time as the firm was able to obtain an eviction order against the Molefe’s. The first respondent obtained the eviction order, but experienced problems in the execution thereof. Dagada Incorporated advised the first respondent on 23 October 2008 that Leepile was again warned by her bank that her bond account was in arrears and that action would be taken against her.

[38] On 2 July 2008 Stegmanns Incorporated addressed a letter to the applicant on behalf of Nedbank advising the applicant that the first respondent had failed to reply to correspondence addressed to him. In the correspondence, Stegmanns Incorporated inquired about the whereabouts of the proceeds of the abovementioned sale of the property. Stegmanns Incorporated also mentioned that the bond repayments were in arrears. Swart discussed the complaint with the first respondent on 25 August 2008.

[39] The first respondent also received a copy of the same complaint from the Law Society of Bophuthatswana. He replied thereto in writing on 21 August 2008. In his reply, he alleged the following:-

His firm received an amount of R220 881.70 in respect of the proceeds of sale of the immovable property as well as an amount of R12 222.61 in respect of the sale of a motor vehicle. The total of the receipts therefore amounted to R233 104.31. He paid various expenses on behalf of the estate in the amount of R72 418.50, which left a balance of R169 154.60. The Molefe’s attorneys advised the first respondent that Ms Molefe had sold the property fraudulently during the process of liquidation and that they were in the process of pursuing a claim, although it was proving difficult. The first respondent advised Leepile during December 2007 that she was obliged to the bank to pay her monthly bond instalments. He advised Leepile further that the property was registered in her name and that the firm’s rights to proceed with the eviction order ceased when ownership of the property was transferred to her.

[40] After first respondent had made the said explanation, Swart inspected a copy of the trust creditor’s account of Leepile for the year ending 28 February 2007. The receipts referred to above were reflected in the account as well as the transfer of the amount of R220 881.70 to a Section 78(2A) investment account. The first respondent paid an amount of R37 018.50 into the bond account of Leepile as rental owed by Ms Molefe in respect of the occupation of the property. This amount was paid in two instalments, R22 000.00 and R15 018.50 respectively. On 25 August 2008 the balance of the funds left in the Section 78(2A) account was transferred to the firm’s trust banking account. A copy of the firm’s trust banking statement for the period 13 August 2008 to 25 August 2008 reflects the deposit in the amount of R157 334.75.

[41] Swart prepared a reconciliation of the trust account of Mr and Ms Molefe and found the following:

Amounts received R233 104.31

Less payments made R 72 418.50

___________

R160 685.81

Add interest earned on the Section 78(2A) account R 8 871.55

Balance of account R169 557.36

[42] The balance in the amount of R169 557.36 is made up of the trust creditor’s balance of R12 222.61 plus the transfer from the Section 78(2A) banking account in the amount of R157 334.75. The trust account reflects a balance of R169 154.60 and the difference can be attributed to interest earned on the investment account.

[43] Swart also perused the accounting by attorney Fourie dated 4 October 2006. It reflected agent’s commission in the amount of R26 000.00. The amount reflected in the firm’s accounting records however was R27 200.00. According to Swart, a double payment was made in this regard which payment requires further investigation.

[44] According to Swart, the first respondent had not yet completed his mandate in the matter. Whether Leepile’s trust fund is still available in the firm’s trust banking account in uncertain.

SWART’S SUMMARY AND CONCLUSIONS

[45] Swart is of the view that the first respondent contravened the following provisions of the Attorneys Act and the Rules:

45.1 Rule 68.4.2 of the Rules due to the fact that the first respondent failed to keep his accounting records available at his office (Rule 48(1) of the Bop Rules);

45.2 Rules 68.1 and 68.2 of the Rules read with Section 78(4) of the Act due to the fact that the first respondent failed to keep proper accounting records in respect of his practice (Rule 48(1) of the Bop Rules and Section 73(5)(a) of the Bop Act);

45.3 Rule 68.5 of the Rules due to the fact that the first respondent failed to regularly and promptly update his accounting records as his accounting records have not been written up for more than one month (Rule 48(3) of the Bop Rules);

45.4 Rule 69.17.1 of the Rules due to the fact that the first respondent failed to at intervals of not more than three calendar months extract a list of trust creditors and to compare the total of the list with the firm’s trust cash position (Rule 55(1) of the Bop Rules);

45.5 Rule 70(3) of the Rules due to the fact that the first respondent failed to submit his Rule 70 auditor’s report to the applicant within the required period (Rule 56(1) and 57(1) of the Bop Rules);

45.6 Sections 41(1) and 41(2) of the Act due to the fact that the first respondent practised as an attorney without a fidelity fund certificate (Section 36(1) and 36(2) of the Bop Act);

45.7 Section 37(1) of the Act due to the fact that the first respondent practised within the jurisdiction of the Law Society while not being registered as a member of the Law Society;

45.8 Rule 69.5 of the Rules due to the fact that the first respondent did not ensure that withdrawals from his trust banking account were made only to or for or on behalf of trust creditors or as transfers to his business banking account provided that such transfers shall be made only in respect of monies due to the firm (Rules 52(2) and 52(3) of the Bop Rules);

45.9 Section 70 of the Act due to the fact that the first respondent failed to comply with a direction of the Law Society to produce for inspection his accounting records to a person authorised thereto (Section 65 of the Bop Act);

45.10 Rule 89.25 of the Rules due to the fact that the first respondent failed to comply with an order, requirement or request of the Council (Rule 76(24) of the Bop Rules) and

45.11 Rule 89.23 of the Rules due to the fact that the first respondent failed to answer to or to appropriately deal within a reasonable time with any communication which reasonably requires a reply or other response (Rule 76(22) of the Bop Rules).

[46] Swart was still unable to comment on the status of the firm’s accounting records. He holds the view that the first respondent contravened a great number of provisions of the Act and Rules and concludes that it would be expected of a practitioner to attempt to clear all previous problems in a manner to allow him to have a clean record with the Law Society. This has however not transpired.

Complaint: Ms Johanna Saina Baloyi

[47] What follows is yet another complaint against the first respondent. Baloyi instructed the first respondent during 2005 to institute a third party claim on behalf of R C Molefe (Molefe). Molefe was placed in Baloyi’s foster care after his biological parents, Ms Molefe and Mr M J Baloyi, had passed away. The proceeds of the third party claim were allegedly paid to the late Ms Molefe after her husband’s death. The money was invested in a First National Bank investment account. Ms Molefe thereafter passed away on 2 February 2003. Baloyi attempted to access the monies in order to assist R C Molefe financially, but she was advised that the account had been closed and that the proceeds had been withdrawn by the first respondent. The whereabouts of the monies are unknown and the first respondent has failed to pay the proceeds or any part thereof to Baloyi. The first respondent has most probably misappropriated these monies.

[48] On 24 March 2009 the applicant addressed a letter to the first respondent granting him 14 (fourteen) days within which to make his complete accounting records available to Swart for the purpose of the inspection. The first respondent failed to do so and failed to reply to the Law Society’s letter. The matter was thereafter referred to the Law Society’s Council for further consideration.

DECISION OF COUNCIL

[49] On 29 May 2009, the Council considered all the facts available to it concerning the first respondent and concluded that whether each complaint was considered alone or all the complaints were considered cumulatively, he had made himself guilty of unprofessional or dishonourable or unworthy conduct and was no longer a fit and proper person to continue to practice as an attorney or as an officer of this Court.

[50] After the present application was launched with the Registrar of this Court, the applicant received two further complaints against the first respondent from his clients. The first was from a firm of architects and the second from Mr Ramongane.

Complaint: Firm of Architects

50.1 The first respondent was instructed to recover an amount of R67 695.80 and a deposit in the amount of R2 000.00 (two thousand rand) was paid by the client. The first respondent gave unsatisfactory reports as to the matter and ultimately the trust relationship between them collapsed and the first respondent withdrew from the matter. He undertook to prepare a statement of account, but failed to do so. The complainants subsequently attended at the Magistrate’s Court and from the court file it transpired that no action had been taken in the matter. There was no record of any application for default judgment. When the complainants addressed a further letter to the first respondent, namely that the matter would be reported to applicant should he not provide him with the necessary information and documents, the first respondent failed to reply to this letter. The charges that culminated from this complaint are that first respondent did not handle the instruction properly, that he failed to report to the complainants on the progress of the matter, and failed to provide documentation relating to the matter after having been requested to do so.

Complaint: Mr Ramongane

50.2 The applicant was further advised that a claim in the amount of R200 905.65 had been lodged with the Attorneys Fidelity Fund in respect of alleged misappropriation of trust funds by the first respondent. The first respondent was appointed by the Master of the High Court as executor in a deceased estate. It is alleged that the first respondent failed to account to the deceased’s surviving spouse who was entitled to payment in the amount of R200 905.65. Although it appears from the documentation that respondent did answer to correspondence addressed to him and alleges that he has indeed accounted for the amount of R200 905.65 there is no record or proof that he indeed paid the amount to the deceased’s surviving spouse. It is unclear what the status of the finalisation of the administration of the estate is and what happened further to the balance of R511 232.23 which was available for distribution.

[51] I set out below the version of the first respondent to all the allegations levelled against him. In relation to the complaint by Leepile, referred to in paragraph 33 to 44, it will be noted that he (the first respondent) had already responded to it before Council took a decision to launch this application; see paragraph 39.

[52] First respondent did not know that he was supposed to account to applicant because he always accounted to second respondent. However, he never refused Swart access to his books of accounts on the basis that applicant had no authority over him. When Swart first came to his firm, he requested to be furnished with records dating back to previous years. Such records were not readily available at that stage. He then asked for an opportunity to find the records. Swart then agreed to this arrangement and first respondent was given chance to prepare his books. Unfortunately, applicant became impatient and proceeded with the application to compel him to produce his books of accounts.

Fidelity Fund Certificate

[53] The first respondent maintains that he has always been registered with the second respondent, to practice as an attorney. As proof thereof he produced a copy of the fidelity fund certificate dated 19 June 2001 issued by the second respondent. Therein it is certified that he (first respondent), has complied with the provisions of Sections 37 and 38 of the Act in respect of the year ending 31 December 2001.

SWART’S INSPECTION AFTER THE COURT ORDER

[54] The first respondent reiterates his point that he was always registered with the second respondent. When he attempted to register with the applicant, as directed to do so by the latter, he was told that he had to be enrolled with the Registrar of the North Gauteng High Court. His attempts to enrol as aforesaid were marred by countless problems and delays. Some of these problems were:-

It was difficult to obtain a certificate of good conduct from the Registrar;

Second respondent was also prepared to issue a similar certificate to first respondent provided that he produced a valid fidelity fund certificate. He had none.

At some stage he asked applicant to issue him with a fidelity fund certificate but the very same applicant told him that he (first respondent) was not its member.

Mr Swart did however assist him finally to register with applicant who then issued him with a fidelity fund certificate. At all material times his original handwritten books of accounts were available at his firm. His accountants and auditors only kept the computer generated records. He denies therefore that he failed to keep his books of accounts always at his firm. The handwritten records were good for all accounting purposes.

R10 000-00 loan from trust account

[55] First respondent admits that he spent R10 000-00 from trust funds to pay his personal debt being the Law Society’s costs in the notice to compel application. This is how it happened:- He was avoiding the attachment of his property which was eminent. The Sheriff was already armed with a writ of execution against his property. He had no money. His attempts to source funds from immediate family members and friends proved fruitless. He then resorted to his clients and one of them, who is also his friend, was sympathetic to him and he agreed to lend him his (client) R10 000-00 which was his money in first respondent’s trust account. This loan agreement was not reduced to writing. He admits however, that his conducted violated Rule 69.5 of the Rules (and Rule 52(2) and (3) of the Bop Rules).

Complaint: Mathekga

[56] It is indeed true that he was instructed by Mathekga as alleged by the applicant. However it is not correct that he never advised him about the costs because they had agreed that the matter would proceed on a pro amico basis. He was the first respondent’s friend due to the fact that he was his long standing client. He never paid R3 300-00 at the first respondent’s office but only R500-00 which was defraid towards disbursements. Mathekga was given progress reports as he visited the office on several occasions. He was staying nearby, and in order to reduce telephonic costs, he would just walk to first respondent’s office for a feedback. I set out below the various steps which the first respondent allegedly took in order to assist his client.

[57] Mathekga had initially obtained judgment in the Small Claims Court and came to the first respondent for assistance when Makinta Attorneys had successfully applied to Court for a stay of the execution of the judgment. The judgment for the stay of the warrant of execution was obtained by default and Mathekga was not properly served with the application. On 1 November 2002, the first respondent approached the same court with an application for rescission of the judgment. The application was unfortunately dismissed with costs against Mathekga. The first respondent received instructions from Mathekga to note an appeal against that judgment. He then volunteered to prosecute the appeal on a pro amico basis. The appeal was noted on 4 March 2003. On 21 March 2003, a date for the hearing of the appeal was allocated by the Registrar of the court. When the opposing party received the notice of set down, it was decided that an attempt be made to settle the matter and as a result of that, the appeal was removed from the roll. In a subsequent meeting that took place between the parties before the withdrawal of the appeal, it was agreed that Respondent abandoned the judgment that was appealed against as he had agreed to satisfy the judgment debt.

[58] When respondent failed to live up to that promise, Rikhotso Attorneys applied for a garnishee order. That ex parte application was served on the respondent and on ABSA Bank on 16 September 2005, and it was due for hearing on 5 July 2005. On 5 July 2005, a pre-trial meeting was held between the parties who were duly represented and it was agreed that respondent, who acknowledged his indebtedness, be afforded an opportunity until early in the following year to effect payment. Respondent did indeed pay an amount of R3 048.17 and letters were written to Mathekga to come and collect his money, but same were not responded to. On 30 March 2006, the firm drew up a cheque for the amount of R2 650.00 in favour of Mathekga, which was sent to him under cover of a letter of the same date. According to the firm’s records, the cheque was negotiated by Mathekga on 5 April 2006. The firm informed Mathekga that the amount of R398-17 was spent on revenue stamps for the request of reasons for judgment in the lower court and also on the Sheriff’s fees in respect of service of the garnishee order on the respondent and the Bank. The first respondent accordingly denies that he did not conduct himself unprofessionally under the circumstances.

Complaint: Mmakola

[59] In his letter dated 14 January 2005 first respondent stated that he informed his client that on the date of the hearing of his case at the CCMA, he (first respondent) would be engaged in the local court. Advocate Phahlane was therefore briefed telephonically in the presence of Mmakola, to represent the latter at the CCMA on 26 November 2003. That matter was postponed sine die. Seemingly, the date of hearing was subsequently fixed as 29 January 2004 but Phahlane and the client kept the first respondent in the dark about these developments. Later his client told him that on 28 January 2004 he met Adv Phahlane when they prepared for the hearing of the subsequent day. When they parted at 15H00, it was agreed between Phahlane and the client that they would meet the subsequent day at 11H30 at Counsel’s chambers so that they could travel together to the CCMA.

[60] On 29 January 2004, default judgment was granted against Mmakola because he and his advocate were not in court. It was only on 9 February 2004 that the client came to inform the first respondent that he and Phahlane were not able to make it to the CCMA on 26 November 2003 because Phahlane had a problem with her car. When he heard this, the first respondent lodged an application for rescission of judgment. This application was lodged with the CCMA on 10 February 2004. Unfortunately the application was dismissed on the basis that Mmakola and his legal representative made bad arrangements.

[61] It is not true that the client was not advised of the developments in the case. He communicated with Phahlane personally. The CCMA informed him about the date of the hearing of the application for rescission of judgment. The judgment of the rescission application was posted to the client and subsequent to that he came to the first respondent’s firm to advise him of same. He then advised his client about his various options and the cost implications.

Complaint: Leepile

[62] In paragraph 39 of this judgment the first respondent’s response to this complaint was set out. The following information should therefore be construed as addition to what has already been stated before. Since he was acting as a liquidator of the estate, his fees were limited to 10% of the value of the joint estate. Amongst the debts of Leepile, he also paid her bond but this he could not do indefinitely. He denies that the balance in the estate was R169 154-31 but maintains that it was R160 685-81. He denies that he paid R37 018-50 into the bond account for Leepile as rental owed by Molefe in respect of the occupation of the property. His view is that this amount was paid into the bond account of Molefe’s funds in the first respondent’s possession as she was unduly enriched by her occupation of the fixed property while its owner continued to pay the bond.

[63] The amount of R26 000-00 represents the estate agent’s commission since the services of an agent were utilised. The amount was paid directly to the agent by Stephan Fourie Attorneys, who dealt with the transfer of the property from Mr and Mrs Molefe into Leepile’s names. The amount which was received by the first respondent from the said attorneys, being R220 881-70, was exclusive of costs, which included conveyancing costs and the estate agent’s commission.

[64] As a liquidator, the first respondent was entitled to 10% of the gross value of the joint estate and the amount of R27 2000-00, referred to as commission in the first respondent’s letter which is dated 21 August 2008, in what was paid to him in this regard. The first respondent denies that he has not yet completed his mandate in this matter. A perfect accounting of the funds is as stated in his letter of 25 August 2008 as well as his ledger account relating to the said transactions. His trust account bank statement reflects that an amount of R157 334-75 was put back into the trust account on 25 August 2008.

Complaint: Baloyi

[65] After the firm received instructions, it proceeded to assist Ms Baloyi to claim the contents of her file from her previous Attorneys, firstly Molefe Attorneys and thereafter Mokgohloa Attorneys. After a long negotiation with both Attorneys as they required their fees, the firm obtained the contents of the file, whereafter it proceeded to investigate her claim. First respondent first forwarded the Letters of Authority to the bank with the aim of claiming the proceeds. He was advised by the bank that they could not assist as the accounts of the deceased were previously closed in the year 2003, long before the first respondent received instructions to act for Ms Baloyi. The first consultation with Ms Molefe was on 30 November 2005 and the account from which the firm allegedly received moneys was closed on the 17th June 2003.

[66] The first respondent explained the state of affairs to Ms Baloyi who had initially indicated that she was R.C. Molefe’s biological grandmother, and who refused to bring R.C. Molefe along and/or his official particulars. The first respondent says that he is surprised to learn from applicant’s papers that Ms Baloyi was merely taking care of R.C. Molefe and that the two are not related. He submits that even if he had succeeded in claiming the money, same could not be forwarded to Ms Baloyi, but to R.C. Molefe or the Master of the High Court.

[67] Sometime in May 2007, he was approached by Ms Baloyi, who instructed him that she had traced the money and she presented to first respondent a copy of a letter addressed to R.C. Molefe from the bank, which confirmed that an amount of R56 013.24 was invested in account number 71046260883 under R.C. Molefe’s names. The investment was probably done at the initiative of the previous two attorneys who attended to the matter. He advised Ms Baloyi to bring him R.C. Molefe’s official documents, to which she objected after telling him that she wanted to keep the child out of the whole thing. After the said consultation, wherein they could not agree with Ms Baloyi, he proceeded to write numerous letters to her calling upon her to furnish the firm with further instructions and same were ignored. The matter was then held in abeyance pending further instructions.

[68] Applicant cannot state that the whereabouts of the money is unknown when at the same time it attaches to its application a note from the bank which confirms that the accounts of the deceased were closed on 20 February 2003, 6 July 2003 and 17 February 2003. All these three transactions occurred before first respondent consulted with Ms Molefe.

[69] The clients called at the first respondent’s firm on 25 June 2007 and they instructed the firm to recover an amount of R67 695.80 from a debtor. A deposit of R2000.00 was paid for the services of the firm. Subsequent thereto, the first respondent gave the client the necessary feedback. The summons and the matter proceeded up to the stage when a warrant of execution against property was obtained in favour of the clients. The case could not be advanced further because the clients were not prepared to accept the legal advice from the first respondent. They were not prepared to furnish security in terms of Rule 38 to indemnify the Sheriff so that he could execute a writ of execution against the debtor. On 11 August 2009 a statement of account was forwarded to the clients by registered mail. The statement was accompanied by a covering letter in which further information was conveyed to them.

Complaint: Ramongane

[70] After the applicant filed a founding affidavit the first respondent filed an answering affidavit. This was followed by applicant’s

supplementary founding affidavit which also prompted the first respondent’s supplementary answering affidavit. The applicant

has now conceded that first respondent is not guilty of any wrong doing in handling the client’s matter.

THE GENERAL PRINCIPLES APPLICABLE

[71] The issue whether or not an attorney is a fit and proper person to continue to practice lies in the discretion of the court which must be exercised judicially (Section 22(1)(d) of the Attorneys Act, No.53 of 1979; Law Society of the Cape of Good Hope v Budricks 2003 (2) SA 11 (SCA)). Equally, the question relating to the appropriate punishment is a matter for the court’s discretion (Malan and Another v Law Society, Northern Provinces 2009 (1) SA 219 (SCA) at 220A-J).

[72] An application of this nature is in itself a disciplinary inquiry and sui generis in nature and it is not a lis between the Law Society and the attorney concerned (Prokureursorde Van Transvaal v Kleynhans 1995 (1) SA 839 (T) at 851 G-H). In the case of Law Society, Northern Provinces v Mogami & Others 2010 (1) SA 186 (SCA) at paragraph 4 the court stated the following:

“Applications for the suspension or removal from the roll require a three-stage enquiry. First, the court must decide whether the alleged offending conduct has been established on a preponderance of probabilities, which is a factual inquiry. Second, it must consider whether the person concerned is ‘in the discretion of the court’ not a fit and proper person to continue to practise. This involves a weighing-up of the conduct complained of against the conduct expected of an attorney and, to this extent, is a value of judgment. And third, the court must enquire whether in all the circumstances the person in question is to be removed from the roll of attorneys or whether an order of suspension from practice would suffice (Jasat v Natal Law Society 2000 (3) SA 44 (SCA) ([2000] 2 All SA 310); Malan and Another v Law Society, Northern Provinces [2008] ZASCA 90; 2009 (1) SA 216 (SCA) ([2009 1 All SA 133; [2008] ZASCA 90) at para 10).”

EVALUATION OF EVIDENCE

[73] The case against the first respondent is that he practised without a fidelity fund certificate, failed to maintain proper books of accounts as required by law and that he failed to account to some of his clients. The real dispute between the parties, in my view, relates to the last issue: failure to account to clients satisfactorily. Although the first respondent endeavoured to challenge most allegations pertaining to the condition of his bookkeeping, the evidence is overwhelming that his books of accounts were in shambles, to say the least. It is therefore not hard to find the reason why he played hide-and-seek with the Law Society in an attempt to avoid the inspection by Swart. He knew what he (Swart) would eventually discover. His initial defence to Swart’s clerk that applicant had no jurisdiction over him was yet another smoke screen. He claims that he was accountable to the second respondent, yet he practised for about seven years without submitting his Rule 70 auditor’s report and therefore practised without a fidelity fund certificate.

[74] It was in March 2005 that applicant resolved that this firm must be inspected. The first respondent did everything in his power to avoid the chartered accountant of the applicant. After a period of about one year and three months from March 2005 this Court issued an order compelling him to make his books available to the applicant. Swart visited this firm on 10 July 2006, 2 October 2006 and 6 November 2006. The first respondent was then sent to attend an accounting course on 26 and 27 July 2006 which was presented by the applicant. Yet on 15 November 2006, when Swart compiled his interim report, he (Swart) was still not in a position to comment on the status of the firm’s books of accounts. This was now more than one and half years since March 2005 (the date on which the applicant resolved to inspect this firm).

[75] Each visit by Swart to this firm discovered a myriad of irregularities. It was only on May 2007 that Swart conducted an audit of the firm’s books of account for the period 13 November 2003 to 29 January 2004. He (Swart) submitted an unqualified report which was acceptable to the applicant. What is worthy to note is that this unqualified report was only produced by Swart more than two years after the auditor’s reports were due for submission to the applicant. The unqualified auditor’s reports for the years ended 28 February 2005, 28 February 2006 and 28 February 2007 were submitted to the applicant only on 15 August 2008. These reports were also acceptable to the applicant.

[76] Swart again visited the firm on 25 August 2008. During the visit the firm’s accounting records were still not available for inspection. Despite numerous telephone calls to the firm from that date onwards, he was not able to arrange an appointment to allow him to inspect the firm’s accounting records. Swart again telephoned the firm on 20 February 2009. He could not speak to the first respondent and requested the telephonist to return Swart’s call to make appointments. The first respondent failed to contact Swart. This was now more than three (3) years after the initial attempts were made.

[77] I pause now to deal with the R10 000.00 “loan”. It is highly desirable and I think it is ethical too, that the relationship between attorney and client should always remain like that. If such a relationship between these two people degenerates into say a relationship between debtor (the attorney) and creditor (the client) the whole accounting system (in the trust account) will easily be contaminated. No one can deny that this was a genuine loan between the client and the first respondent. However, I repeat, this is highly undesirable especially that there is no evidence that the client was a bank or someone running a cash loan business. There was no written loan agreement. The creditor (client) to the debtor (the first respondent) did not file any confirmatory affidavit about the purported loan. The transfer of the trust funds (R10 000.00) direct into the first respondent’s pocket goes against the generally accepted accounting procedures in an attorney’s firm.

[78] I think it is an opportune time to focus my attention on the complaints by client.

Complaint: Mr Mathekga

[79] The first respondent gave a detailed answer and he provided all documentary proof about all the steps which he took in order to advance the interest of his client on a pro amico basis. Although the applicant is still resentful about his explanation, it (applicant) has conceded that the complaint by Mathekga was nonsensical. Therefore, on a balance of probabilities, the court is not satisfied that the first respondent made himself guilty of any misdemeanour.

Complaint: Mr Mmakola

[80] The first respondent concedes that a duty to make a follow up on the matter rested upon his shoulders after he had handed the case over to Phahlane. He however feels that Phahlane also had a duty to advice him of the developments in the case. In my view, the first respondent’s duty in this matter did not end after he handed the client over to the advocate. He remained an instructing attorney throughout. It is clear that what happened here is that after he handed the client to Phahlane, he totally disregarded the case until his client came to give him the bad news of a default judgment. This inaction prior to the said date, boils down to failure to advice his client promptly.

Complaint: Ms Leepile

[81] The first respondent has failed to explain to whom the whole amount of R220 881.70 had been paid. To that extent, he did not even attach the cheque with the deposit slip to his affidavit. He has failed to state categorically whether or not the funds are still available.

Complaint: Ms Baloyi

[82] On 24 March 2009 the applicant addressed a letter to the first respondent granting him fourteen days within which to respond to the Baloyi’s complaint. He failed to respond to the letter. He is guilty for such failure to respond to correspondence. He now comes with an explanation about the complaint (of Baloyi) without addressing his default to reply to applicant’s letter. He adopts a cunning way of doing things; he knows that the court cannot verify the veracity of his explanation unlike the applicant who could have investigated further, had he responded. There is no printout from the ledger account which is attached to his papers. He did not even request the FNB to issue a letter at least for the information of this court, that the funds are still available. He has failed to assist the court in order to establish whether the money is still there.

[83] The gist of the charges are that the first respondent did not handle the instructions properly, that he failed to report to the complainants (the clients) on the progress of the matter and failed to provide documentation relating to the matter having been requested to do so.

[84] If the clients were given a copy of the judgment they would, in all probability, not have taken pains to go to the magistrate’s

court, to peruse the court file in order to inform themselves about the progress in the matter. Under normal circumstances, clients who are legally represented don’t have to search information in court files because such information is available to them through their attorney. In my view, the fact that the clients took such steps (to peruse the court file) is sufficient proof that the first respondent did not communicate the progress of the case to his clients or, he did not communicate it timeously. Again he provided no documentary proof to the court that he advised and informed his clients properly. No reports which were allegedly forwarded to the clients were annexed to the papers before court as proof of the actual content of the report(s) given to them. If there were such reports, they should have been placed before court. He undertook to furnish the clients with a statement of account on 18 March 2009 but furnished it only on 11 August 2009, five months later. He is silent about this delay in communicating with his client. He is guilty of contravening Rule 68.7 which boils down to unprofessional, dishonourable or unworthy conduct in terms of Rule 89.11.

[85] The applicant has conceded that the first respondent has given a satisfactory account about how he handled and disposed off these funds. This court therefore does not find any wrong doing on the part of the applicant.

VERDICT

[86] The Court is satisfied, on a balance of probabilities, that the first respondent has made himself guilty of the following:

86.1 Rule 70.3 of the Rules due to the fact that the first respondent failed to submit his Rule 70 auditor’s report to the Law Society within the required time (Rule 56(1) and 57(1) of the Bop Rules);

86.2 Rule 68.1 and 68.2 of the Rules read with Section 78(4) of the Act due to the fact that the first respondent failed to keep proper accounting records in an official language of the Republic to represent its finances fully and accurately in accordance with generally accepted accounting practice (Rule 48.1 of the Bop Rules and Section 73(5)(a) of the Bop Act;

86.3 Sections 41(1) and 41(2) of the Act due to the fact that the first respondent practised as an attorney without a fidelity fund certificate (Section 36(1) and (2) of the Bop Act);

86.4 Rule 68.4.2 of the Rules due to the fact that the first respondent removed his accounting records from his office (Rule 48(1)(b) of the Bop Rules);

86.5 Rule 68.5 of the Rules due to the fact that the first respondent failed to regularly and promptly update his accounting records because these records had not been written up for more than one month (Rule 48(3) of the Bop Rules);

86.6 Rule 69.7.1 of the Rules due to the fact that the first respondent failed, at intervals of not more than three months, to extract a list of trust creditors and to compare the total of the list with the firm’s cash position (Rule 55(1) of the Bop Rules);

86.7 Section 7(1) of the Act due to the fact that he practised as an attorney within the jurisdiction of the applicant whilst not registered as a member of the Law Society;

86.8 Rule 69.5 of the Rules (Rules 52(2) and 52(3) of the Bop Rules) due to the fact that he did not ensure that withdrawals from the trust banking account were made only to or for or on behalf of a trust creditor, alternatively as transfers to his business banking account provided that such transfers shall be made only in respect of money due to the firm;

86.9 Section 70 of the Act (Section 65 of the Bop Act) due to the fact that the first respondent failed or refused to comply with a direction of the Law Society to produce his accounting records for inspection to a person authorised thereto;

86.10 Rule 89.25 of the Rules (Rule 76(24) of the Bop Rules) due to the fact that the first respondent failed to comply with an order, requirement or request of the Council; and

86.11 Rule 89.23 of the Rules (Rule 76(22) of the Bop Rules) due to the fact that the first respondent failed to reply to or to appropriately deal within a reasonable time with communication addressed to him and which reasonably requires a reply or response.

Is the respondent a fit and proper person to continue practising?

[87] There is no positive evidence that the first respondent embezzled trust funds. A serious charge against him is that of failure to submit his Rule 70 auditors report and therefore practising without a fidelity fund certificate. It is high time that attorneys should realise the importance of the fidelity fund certificates. This is more of a bulwark at the disposal of the innocent client whose funds may vanish under circumstances where an attorney is a man of straws. It is rather with an air of disbelief to learn that the first respondent practiced for about seven years without a fidelity fund certificate. What is worse is that when the applicant wanted to inspect its books of accounts, he made all attempts to cover up his dirty linen.

[88] The next serious area of the charges relate to failure to keep proper books of accounts. The first respondent is best advised to always keep in mind the warning by Kirk-Cohen, R

“Failure to keep proper books of account is a serious contravention and renders an attorney liable to be struck off the roll of practitioners

or liable to suspension; and the Courts have repeatedly warned practitioners of the seriousness of such a contravention. See Cirota and Another v Law Society, Transvaal 1979 (1) SA 172 (A) at 193 F – G). The seriousness is again underlined in rule 89 read with rule 89(11) of the applicant’s rules which provides that it is unprofessional or dishonourable or unworthy conduct on the part of the practitioner to contravene the provisions of the Attorneys Act or the applicant’s rules” (Law Society, Transvaal v Matthews 1989 (4) SA 389 (T) at 395)

[89] In my view, the applicant may have taken advantage of the laxity of the second respondent “to whom he was accountable” (to use his own words). Attorneys who do no carry out their instructions to the fullest and, or who fail to communicate sufficient and prompt information to the clients, tarnish the good image of the profession. I have however taken into account that the applicant took the first respondent through a fruitful accounting course. He personally confessed that he benefited from the exercise. For that reason, I am of the view that although he committed several offences (and most of them more than once) he is not a fitting candidate for removal from the roll at this stage. Time will tell whether he mends his ways. It is accordingly the finding of the court that he still remains to be a fit and proper person to practise as an attorney.

The Sanction

[90] On 4 June 2010 the first respondent was suspended from practising as an attorney for his own account, or in partnership or as a director of a company pending the outcome of this case. When he addressed court on the date of the hearing of the present case, he informed the court that since the day of his suspension he has been employed by his former articled clerk who is now practising as an attorney. As the first respondent conceded, this is a humiliating experience in his life to be an employee of his one time clerk. The fact of the matter is that he has been suspended from practise up to the present moment which is a period of about nine months. Indeed he has partly served his sentence and my view is that it is not desirable to suspend him further for another lengthy period. A suspension of three (3) months would be appropriate as this, together with the nine months (already served) would amount to almost one year.

[91] Consequently, the following sanction is imposed.

91.1 The first respondent is suspended from practising as an attorney for his own account or in partnership or as a director of a company for a period of three months from date hereof.

91.2 The first respondent should immediately surrender and deliver to the Registrar of this Court his certificate of enrolment as an attorney of this Court.

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

_________________________

SAMKELO GURA

JUDGE OF THE HIGH COURT

I agree

R D HENDRICKS

APPEARANCES

DATE OF HEARING: 05 NOVEMBER 2010

DATE OF JUDGMENT: 24 MARCH 2011

COUNSEL FOR APPLICANT: ADV A. T. LAMEY

COUNSEL FOR RESPONDENTS: MR R. RIKHOTSO

ATTORNEYS FOR APPLICANT: MINCHIN & KELLY INC.

ATTORNEYS FOR RESPONDENTS: JERRY SITHOLE ATTORNEYS