Law Society of the Northern Provinces v Willers (1896/2018) [2018] ZALMPPHC 24 (23 May 2018)

IN THE HIGH COURT OF SOUTH AFRICA

LIMPOPO DIVISION, POLOKWANE

DATE: 23 MAY 2018

CASE NO: 1896/2018

BEFORE THE HONOURABLE: JUDGE PRESIDENT MAKGOBA

BEFORE THE HONOURABLE: JUDGE KGANYAGO

In the matter between:

THE LAW SOCIETY OF THE NORTHERN PROVINCES APPLICANT

and

MAGDALENA WILLERS RESPONDENT

COURT ORDER

HAVING HEARD counsel(s) for the party(ies) and having read the documents filed of record;

IT IS ORDERED THAT:

1.1. The honourable court dispenses with the forms and service provided for in the Uniform Rules in terms of rule 6 (12) (a) and disposes of this matter at such time and place and such manner and in accordance with such procedures as to it seems meet;

1.2. The name of MAGDALENA WILLERS (respondent) is struck from the roll of attorneys of this Honourable Court on an urgent basis.

1.3. Respondent hands and delivers her certificate of enrolment as an attorney to the Registrar of this Honourable Court;

1.4. In the event of the respondent failing to comply with the terms of this order detailed in the previous paragraph within two (2) weeks from the date of this order, the sheriff of the district in which the certificate is, is authorised and directed to take possession of the certificate and to hand it to the Registrar of this Honourable Court;

1.5. The Respondent is prohibited from handling or operating on her trust accounts as detailed in paragraph 1.6 hereof

1.6. Johan van Staden, the head: members affairs of applicant or any person nominated by him, is appointed as curator bonis (curator) to administer and control the trust accounts of the respondent, including accounts relating to insolvent and deceased

estates and any deceased estate and any estate under curatorship connected with respondent’s practice as 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 sub-sections or in which monies in any manner have been deposited or credited (the said accounts being hereafter referred to as the trust accounts), with the following powers and duties:

1.6.1 immediately to take possession of the respondent’s accounting records, records, files and documents as referred to in paragraph 1.7 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 the respondent was acting at the date of this order.

1.6.2 subject to the approval and control of the board of control of the fund and where monies had been paid incorrectly and unlawfully from the undermentioned trust accounts, to cover and receive and, if necessary in the interest of persons having lawful claims upon the trust account(s) and/or against the respondent in respect of monies held, received and/or invested by the respondent in terms of Section 78(1) and/or Section 78 (2) and/or Section 78 (2A) of Act No 53 of 1979 (hereinafter referred to as trust monies), to take any legal proceedings which may be necessary for the recovery of money which may be due to such persons in respect of incomplete transactions, if any, in which the 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);

1.6.3. to ascertain from respondent’s accounting records the names of all persons whose account respondent appears to hold or to have received trust monies (hereafter referred to as trust creditors) and to call upon respondent to furnish him, within 30 (thirty) days of the date of service of this order or such further period as he may agree to in writing, with names, addresses and amounts due to all trust creditors;

1.6.4. 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;

1.6.5 to admit or reject, in whole or in part, subject to the approval of the board of control of the fund, the claims of any such trust creditor or creditors, without prejudice to such trust creditor’s or creditors’ right of access to the civil courts;

1.6.6. 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;

1.6.7 in the event of there being any surplus in the trust account (s) of the 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 herein referred to and, secondly, without prejudice to the rights of the creditors of the respondent, the costs, fees and expenses referred to in paragraph 1.3 of Part B of the notice of motion of this order, or such portion thereof as has not already been separately paid by the 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 the respondent, if she is solvent, or, if respondent is insolvent, to the trustee(s) of the respondent’s insolvent estate;

1.6.8 in the event of there being insufficient trust monies in the trust banking account(s) of the 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;

1.6.9 subject to the approval of the chairman of the board of control of the fund, to appoint nominees or representatives and/or consult with and/or engage the services of attorneys, counsel, accountants and/or any other persons, where considered necessary, to assist him in carrying out her duties as curator, and

1.6.10. to render from time to time, as curator, returns to the board of control of the fund showing how the trust account(s) of the respondent has/have been dealt with, until such time as the board notifies her that he may regard his duties as curator as terminated.

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

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

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

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

1.7.4. any estate od a deceased person or an insolvent estate or an estate under curatorship administered by the respondent, whether as executor or trustee or curator or on behalf of the executor, trustee or curator;

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

1.7.6. any trust administered by the respondent as trustee or on behalf of the trustee in terms of the Trust properties Control Act, No 57 of 1988;

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

1.7.8. any close corporation liquidated in terms of the Close Corporations Act, 69 of 1984, administered by the respondent as or on behalf of the liquidator, and

1.7.9. the respondent’s practice as an attorney of this Honourable Court, to the curator appointed in terms of paragraph 1.6 hereof, provided that, as far as such accounting records, records, files and documents are concerned, the respondent shall be entitled to have reasonable access to them but always subject to the supervision of such curator or his nominee.

1.8. Should the respondent fail to comply with the provisions of the preceding paragraph of this order on service thereof upon her or after a return by the person entrusted with the service thereof that she has been unable to effect service thereof on the respondent ( as the case may be), the sheriff for the district in which such accounting records, records, files and documents are, is empowered and directed to search for and to take possession thereof wherever they may be and to deliver them to such curator.

1.9. The curator shall be entitled to:

1.9.1. 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 fees and disbursements due to the firm;

1.9.2. require from the persons referred to in paragraph 1.9.1 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 the respondent provided that any person entitled thereto shall be granted reasonable access thereto and shall be permitted to make copies thereof.

1.9.3. publish this order or an abridged version thereof in any newspaper he considers appropriate.

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

1.10. Respondent is hereby removed from office as:

1.10.1 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-bottom: 0cm; line-height: 150%">1.10.2 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 Estates Act, No 66 of 1965

1.11. If there are any trust funds available the respondent shall within 6 (six) months after having been requested to do so by the curator, or within such longer period as the curator may agree to in writing, shall satisfied the curator, by means of the submission of the taxed bills of costs or otherwise, of the amount of fees and disbursements due to her (respondent) in respect of her former practice, and should she fail to do so, she shall not be entitled to recover such fees and disbursements from the curator without prejudice, however, to such rights (if any) as she may have against the trust creditor (s) concerned for payment or recovery thereof;

1.12. A certificate issued by a director of the Attorneys Fidelity Fund shall constitute prima facie proof of the curator’s costs and that the Registrar is authorised to issue a writ of execution on the strength of such certificate in order to collect the curator’s costs.

1.13. The costs of this application are paid by the respondent on attorney and client scale.

BY ORDER OF THE COURT

REGISTRAR