Legal Practice Council v Motlhabani (UM 148/2018) [2020] ZANWHC 76 (7 May 2020)

IN THE NORTH WEST HIGH COURT, MAHIKENG

Case Number: UM 148/2018

In the matter between:

THE

LEGAL PRACTICE COUNCIL

Applicant

and

FELICITY

BOITUMELO PORTIA MOTLHABANI Respondent

HENDRICKS DJP & NONYANE AJ

DATE

OF HEARING

: 25 MARCH 2020

DATE

OF JUDGMENT

: 07 MAY 2020

COUNSEL

FOR APPLICANT

: ADV. JOOSTE

COUNSEL

FOR RESPONDENT : ADV. MASIKE

ORDER

Consequently, the following order is made:

1. The application to compel is dismissed with costs on an attorney and client scale.

2. The review application is dismissed with costs on an attorney and client scale.

3. That the name of FELICITY BOITUMELO PORTIA MOTLHABANI (the respondent) be removed from the roll of attorneys.

4. That respondent immediately surrenders and delivers to the registrar of this Court her certificate of enrolment as an attorney.

5. That in the event of the respondent failing to comply with the terms of this order in paragraph 4 within two (2) weeks from the date of this order, the Sheriff of the district in which the certificate is, be authorised and directed to take possession of the certificates and to hand them to the Registrar of this Court.

6. That respondent be prohibited from handling or operating on her trust accounts.

7. That Johan van Staden, the head legal practitioner's affairs of the applicant or any person nominated by him, be 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 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 accounts), with the following powers and duties:

7.1 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 Attorney’s Fidelity Fund (hereinafter referred to as the fund) to sign all forms and generally to operate upon the trust accounts, 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;

7.2 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 recover and receive and, if necessary, in the interests of persons having lawful claims upon the trust accounts 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 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 respondent was and may still have been concerned and to receive such monies and to pay the same to the credit of the trust accounts;

7.3 to ascertain from respondent's accounting 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/her, within 30 (thirty) days of the date of service of this order or such further period as he/she may agree to in writing, with the names, addresses and amounts due to all trust creditors;

7.4 to call upon such trust creditors to furnish such proof, information and/or affidavits as he/she may require to enable him/her, 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 accounts of respondent and, if so, the amount of such claim;

7.5 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;

7.6 having determined the amounts which, he/she 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;

7.7 in the event of there being any surplus in the trust accounts 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 or such portion thereof as has not already been separately paid by respondent to applicant. 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 she is solvent, or, if respondent is insolvent, to the trustee(s) of respondent's insolvent estate;

7.8 in the event of there being insufficient trust monies in the trust banking accounts 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 accounts amongst the trust creditors alternatively to pay the balance to the Legal Practitioner's Fidelity Fund;

7.9 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/her in carrying out his/her duties as curator; and

7.10 to render from time to time, as curator, returns to the board of control of the fund showing how the trust accounts of respondent have been dealt with, until such time as the board notifies him/her that he/she may regard his/her duties as curator terminated.

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

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

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

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

8.4 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;

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

8.6 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;

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

8.8 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

8.9 respondent's practice as an attorney of this Court, to the curator appointed in terms of paragraph 7 hereof, provided that, as far as such accounting 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.

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

10. That the curator shall be entitled to:

10.1 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;

10.2 require from the persons referred to in paragraph 8.1 to provide any such documentation or information which he/she may consider relevant in respect of a claim or possible or anticipated claim, against him/her 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;

10.3 publish this order or an abridged version thereof in any newspaper he/she considers appropriate; and

10.4 wind-up of the respondent's practice.

11. That respondent be and is hereby removed from office as –

11.1 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);

11.2 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;

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

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

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

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

11.7 administrator appointed in terms of Section 74 of the Magistrates Court Act, No 32 of 1944.

12. That respondent be and is hereby directed:

12.1 to pay, in terms of section 78(5) of Act No 53 of 1979, the reasonable costs of the inspection of the accounting records of respondent;

12.2 to pay the reasonable fees of the auditor engaged by applicant;

12.3 to pay the reasonable fees and expenses of the curator, including travelling time;

12.4 to pay the reasonable fees and expenses of any person(s) consulted and/or engaged by the curator as aforesaid;

12.5 to pay the expenses relating to the publication of this order or an abbreviated version thereof; and

12.6 to pay the costs of this application on an attorney-and-client scale.

13. That 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, satisfy the curator, by means of the submission of taxed bills of costs or otherwise, of the amount of the fees and disbursements due to 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,

14. That a certificate issued by a director of the Legal Practitioner's Fidelity Fund shall constitute prima facie proof of the curator's costs and that the Registrar be authorised to issue a writ of execution on the strength of such certificate in order to collect the curator’s costs.

JUDGMENT

HENDRICKS

DJP

Introduction

[1] This is an application consisting of two parts brought by the applicant against the respondent. The Legal Practice Council [“LPC”], (applicant) formerly known as The Law Society of the Northern Provinces, received complaints relating to the conduct of the respondent as an attorney. The applicant investigated the complaints. It was decided/resolved to apply to this Court for the suspension (Part A) and ultimately the removal /striking off of the name of the respondent from the roll of attorneys (Part B).

See: Law Society, Northern Provinces v Mogami and Others 2010 (1) SA 186 (SCA).

[2] The application was lodged with the Registrar of this Court on 27 September 2018 and set down for the hearing of Part A thereof on 19 October 2018. On 19 October 2018 Gutta J and Matlapeng AJ granted an order suspending the respondent from practicing as an attorney and ancillary relief (Part A). The matter was again on the roll for 12 December 2018 but was removed from the roll as per a notice of removal filed. It was re-enrolled for 15 November 2019. On 15 November 2019 this Court granted a postponement, as requested by the respondent, to 25 March 2020 and set time frames in order to case manage the matter to be trial ready.

[3] It was inter alia ordered that the respondent should file her answering affidavit in the removal/striking off application within ten (10) days from the date of the order. To serve and file the application to compel also within ten (10) days from the date of the order. The applicant to file and serve its answering affidavit to the application to compel within ten (10) days from date of receipt of the application to compel, if any, and the respondent to file her replying affidavit within ten (10) days of receipt of the answering affidavit. The application to compel, the review application and the removal/striking off application be set down for hearing on 25 March

2020. The interlocutory application to compel compliance with the request for the filing of a record in the review application was subsequently filed by the respondent. The applicant in reply thereto filed and served an answering affidavit in the review application and a Rule 6 (5) (d) (iii) notice.

[4] On 25 March 2020 these applications served before this Court. The respondent has failed to file an answering affidavit in the removal/striking off application. At the commencement of the hearing of these applications, Adv. Masike appearing on behalf of the respondent, informed the Court that although he is on brief in this matter, he holds no further instructions. The respondent informed her instructing attorney that she is tired of this matter. This was told to Adv. Masike who conveyed it to this Court. The matter was therefore unopposed. After listening to the submissions by Adv. Jooste on behalf of the applicant, the prayers contained in paragraphs (1) and (2) of the aforementioned order were granted. Judgment in respect of the removal/striking off application was reserved.

Background facts

[5] Felicity Boitumelo Portia Motlhabani (respondent) was admitted as an attorney on 16 June 2004. She practice as such under the name and style of Motlhabani Attorneys & Administrators of Estates, in Mahikeng (the firm). The Legal Practice Council [LPC] (applicant) received complaints against the respondent. The complaints relate inter alia to the misappropriation of trust funds; failure to account to clients; and the overcharging of clients. The applicant instructed a Chartered Accountant, Mr. Reddy (Reddy), to conduct an inspection of the accounting records and the affairs of the firm and to investigate the complaints.

Complaint by Ms. K.P. Kgosiemang

[6] The applicant received a complaint from Ms. Kgosiemang on 22 June 2016 in which she alleges that the firm owes her an amount of R464 312.00 since 13 January 2016. She states that she only received and amount of R150 000.00. This complaint was investigated by Reddy. An amount of R6 500 000.00 was received on behalf of Ms Kgosiemang from the Department of Health and deposited into the firm’s trust account over the period 25 November 2014 to 24 February 2015. The firm’s ledger reflects numerous electronic fund transfers to the firm’s business bank account, as well as cheque payments over the period 30 November 2014 to 31 December 2015. Payments on the ledger account did not relate to Ms. Kgosiemang. Several cheques as reflected on the trust ledger account of Kgosiemang does not indicate that Kgosiemang is the beneficiary. Instead, there are several other beneficiaries.

[7] Reddy discussed this issue with the respondent who confirmed that the payments relate to other clients. She could not explain why these payments were allocated to the trust creditor account of Ms. Kgosiemang. The effect thereof is that the trust creditor balance of Ms. Kgosiemang’s account is understated in the accounting records. It was established that R1 500 000.00 of the R6 500 000.00 received, was paid to Ms. Kgosiemang. Payments to Ms Kgosiemang were also delayed. As an explanation why payments were delayed, the respondent stated that it was as a result of the bill of costs not being drafted. This was not correct as the bill of costs was taxed on 18 September 2015. The real reason according to Reddy was because monies were not available in the firm’s trust banking accounts.

[8] Furthermore it was also established that the statement of account of Ms. Kgosiemang was incorrect. In terms of the fee agreement entered into between the firm and Ms. Kgosiemang, the fee would be limited to an amount of R1 345 946.66. However, the statement of account reflected an amount of R1 625 000.00, meaning that Ms. Kgosiemang was overcharged with an amount of R 279 053.34. Ms. Kgosiemang was also not paid in full as submitted by the respondent to Reddy. Instead, Reddy found that the ledger account of Ms Kgosiemang proves that the respondent, as the only person who handled fees and payments of the firm whether by cheque or electronic fund transfers, was rolling trust monies due to the existence of a trust deficit.

[9] Reddy concluded that the respondent’s accounting records are either inaccurately prepared or intentionally manipulated in order to understate the firm’s trust creditors. The firm’s accounting records are unreliable and does not reflect the actual trust creditor balance. Based on the information established with regard to the investigation of the complaint of Ms. Kgosiemang, there is at least a trust deficit of R2 728 726.63. Ms. Kgosiemang was still owed an amount in excess of R 3 000 000.00.

[10] Various rules of the Attorney’s Profession were breached by the respondent. These rules relate thereto that the firm’s accounting records were not updated on a monthly basis (Rule 35.9); a failure to ensure that the total amount of money in the firm’s trust account, trust investment account and trust cash at any date shall not be less than the total amount of the credit balances of the trust creditors shown in its accounting records (Rule 69.3.1 alternatively Rule 35.13.8); a failure to maintain accounting records that fully and accurately reflect the state of affairs and business of the firm (Rule 68.1); a failure to pay an amount due to a client within a reasonable time (Rule 68.8); and the respondent overcharged a client (Rule 89.24).

Complaint by Ms. E. Ramaisa

[11] Ms. E. Ramaisa filed a complaint with the applicant against the respondent on 24 April 2017. Ramaisa alleges that she instructed the respondent to institute a claim for medical negligence against the Member of the Executive Council (MEC) responsible for Health in the North West Province. The matter became settled. The settlement amount was R8 000 000.00. This amount was paid into the respondent firm’s trust account on 30 March 2016. Upon enquiry, the respondent informed Ms. Ramaisa only during September 2016 that the money was paid and that a trust needed to be established. The respondent further informed Ms. Ramaisa that she is utilising some of the monies to build a house for Ms. Ramaisa. According to the respondent, the contractor is still busy building the house for Ms. Ramaisa. The building was delayed as a result of difficult weather conditions.

[12] The respondent stated that she is struggling to find trustees to set up security and to establish a trust. That is why a trust was not yet established. She also assists Ms. Ramaisa and her family with the reasonable monthly expenses but the Ramaisa family wants exorbitant amounts of money for groceries and other daily living expenses. This is for the Ramaisa family’s benefit and not for the benefit of the child on whose behalf the claim was made.

[13] In response hereto, Ms. Ramaisa states that the respondent only bought building material for the house after she lodged the complaint. Furthermore, it was not ordered by the court that a house be built for them. No actual report was made to her by the respondent about the monies received and the respondent therefore failed to communicate effectively with her.

[14] Reddy found that the respondent disregarded the instructions of her client; that there is a trust deficit in the trust accounts; and the respondent’s conduct illustrates a disregard in respect of the essence of trust funds. The trust deficit is in breach of Rule 35.13.8. Failure to keep proper accounting records in breach of Rule 35.13.1 and Rule 36.7. Failure to account to her client in breach of Rule 35.11 and Rule 49.13. The delay in payments of trust funds to the client is in breach of Rule 35.12.

[15] As a result of the complaints received, as well as on the strength of the report submitted by Reddy, the applicant resolved that the respondent behaved in an unprofessional, dishonourable and unworthy fashion. Furthermore, that she is no longer a fit and proper person to continue to practice as an attorney. Her conduct does not meet the standard of behaviour and reputation which is required of an attorney and officer of this Court. She had damaged the reputation of the attorney’s profession and her name should therefore be removed from the roll of attorneys.

[16] The applicant lodged the application as aforementioned in two parts with the Registrar of this Court. Part A was for the suspension of the respondent from practice as an attorney and Part B for the removal/striking off of her name from the roll of attorneys. In Law Society, Northern Provinces v Mogami and Others, supra, the following is stated:

“[2] The relief sought in part A of the notice of motion was granted by Hendricks J, but the full bench (Monama AJ in a judgment concurred in by Gura J), when dealing with part B, refused to take any punitive action against the respondents; permitted them to recommence their practice; and ordered the parties to pay their own costs. The appeal is against this judgment. As a result of the interim order the respondents were effectively suspended from practising for a period of about ten months.

[4] 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 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).”

[17] As alluded to earlier, this Court per Gutta J et Matlapeng A.J granted an order in terms of Part A, suspending the respondent from practice as an attorney on 19 October 2018, together with ancillary relief.

The application for review of the decision of the LPC.

[18] The respondent launched a review application for the reviewing and setting aside of the decision/resolution of the applicant taken on 31 August 2018 to apply for her removal/striking off the roll without referring her alleged acts of misconduct to a disciplinary enquiry in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) and/or the principle of legality. Furthermore, that the striking off the roll of attorneys proceedings be stayed pending the investigation and conducting of a disciplinary enquiry and the finalization thereof. The record of the decision/resolution taken on 31 August 2018 by the applicant be supplied to her and filed with the Registrar of this Court.

[19] This application for review is opposed by the applicant. Firstly, on the basis of section 72 (6) of the Attorney’s Act 53 of 1979, which states;

“the provisions of the section shall not affect the power of -

n

(a) a society to apply in terms of the provisions of this Act for the suspension from practice or the striking of from the roll of any practitioner 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 the 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.”

(Emphasis added)

By virtue of the fact that this application was launched before the Legal Practice Act 28 of 2014 came into effect on 01 November 2018, it has to be determined in terms of the provisions of the Attorney’s Act 53 of 1979 (the Attorney’s Act) and its regulations.

[20] In terms of section 72 (6) of the Attorney’s Act, the applicant was entitled to apply to court for the suspension and removal/striking off of the roll of attorneys of the respondent, without at first calling her for a disciplinary hearing in terms of section 71 and 72 of the Act. The applicant derives its power and authority as the custos morum of the profession from the Attorney’s Act. The ultimate decision to evaluate the conduct of the respondent and to determine

whether she is a fit and proper person to continue to practice as an attorney lies with the Court, in terms of section 22 (1)(d) of the Attorney’s Act.

[21] Section 22 (1) (d) of the Attorney’s Act provides:

“Any person who has been admitted and enrolled as an attorney may on application by the society concerned be struck off the roll or suspended from practice by the court within the jurisdiction of which he practises . . . if he, in the discretion of the court, is not a fit and proper person to continue to practise as an attorney.”

In Botha v Law Society, Northern Provinces [2008] ZASCA 106; 2009 (1) SA 227 (SCA) the following is stated:

“[2] … “As was said in Jasat v Natal Law Society and repeated most recently in Malan and Another v Law Society, Northern Provinces, the section contemplates a three-stage inquiry: First, the court must decide whether the alleged offending conduct has been established on a preponderance of probabilities, which is a factual inquiry. Second, the court must consider whether the person concerned 'in the discretion of the court' is 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 judgment. Third, the court must inquire

whether in all the circumstances the attorney is to be removed from the roll of attorneys or whether an order of suspension from practice would suffice.

[3] The appeal was directed at the sanction imposed by the court a quo. The decision whether an attorney who has been found unfit to practise as such should be struck off or suspended is a matter for the discretion of the court of first instance. That discretion is an example of a 'narrow' discretion. The consequence is that an appeal court will not decide the matter afresh and substitute its decision for that of the court of first instance; it will do so only where the court of first instance did not exercise its discretion judicially, which can be done by showing that the court of first instance exercised the power conferred on it capriciously or upon a wrong principle, or did not bring its unbiased judgment to bear on the question or did not act for substantial reasons, or materially misdirected itself in fact or in law. It must be emphasised that dishonesty is not a sine qua non for striking-off. As Harms JA said in Malan:

Obviously, if a court finds dishonesty, the circumstances must be exceptional before a court will order a suspension instead of a removal . . . Where dishonesty has not been established the position is . . . that a court has to exercise a discretion within the parameters of the facts of the case without any preordained limitations.”

[22] Secondly, the respondent contended that the Promotion of Access to Justice Act (PAJA) finds application and that the review is in terms of the grounds stipulated in section 6 of PAJA. It was alleged that the decision/resolution taken by the applicant amounts to administrative action.

[23] The applicant contended that it did not take a decision to discipline the respondent. The applicant took a decision to bring the conduct of the respondent under the attention of the Court, so that the Court can make a decision whether or not to discipline the respondent, as one of its officers.

[24] The respondent need not even bring a review of the decision/resolution by the applicant. It was incumbent upon the respondent to file an answering affidavit in which she should answer to, or dispel any of the allegations of misconduct or complaints levelled against her. This she failed to do. Instead, she decided to review the decision/resolution of the applicant to launch this application. To this end, she also filed an application to compel compliance with the request for the record of the decision/resolution taken by the applicant. This was countered by the filing of a notice in terms of Rule 6 (5) (d) (iii). The applicant allege that the application to compel as well as the review application are fatally flawed. No case is made out and no evidence presented that the decision by the applicant constitutes administrative action as defined in section 1 of PAJA.

[25] The suspension and removal/striking off application constituted sui generis disciplinary proceedings which becomes the Court’s proceedings. These proceedings are merely referred by the applicant to the Court. When the applicant exercises its discretion to refer the alleged offending conduct to the Court for the Court to make a decision on whether the practitioner should be suspended and or removed/strike off as not being a fit and proper person to continue to practice as an attorney, the exercising of such discretion does not constitute a decision within the ambit of administrative action as defined in section 1 of PAJA.

[26] Administrative action is defined as follows in PAJA:

“‘administrative action’ means any decision taken, or any failure to take a decision, by-

(a) an organ of state, when-

(i) exercising a power in terms of the Constitution or a provincial constitution; or

(ii) exercising a public power or performing a public function in

terms of any legislation; or

(b) a natural or juristic person, other than an organ of state, when exercising a public power or performing a public function in terms of an empowering provision,

which adversely affects the rights of any person and which has a direct, external legal effect, but does not include-

(aa) the executive powers or functions of the National Executive, including the powers or functions referred to in sections 79 (1) and (4), 84 (2) (a) , (b) , (c) , (d) , (f) , (g) , (h) , (I) and (k) , 85 (2) (b) , (c) , (d) and (e) , 91 (2), (3), (4) and (5), 92 (3), 93, 97, 98, 99 and 100 of the Constitution;

(bb) the executive powers or functions of the Provincial Executive,

including the powers or functions referred to in sections 121 (1) and (2), 125 (2) (d) , (e) and (f) , 126, 127 (2), 132 (2), 133 (3) (b) 137, 138, 139 and 145 (1) of the Constitution;

(cc) the executive powers or functions of a municipal council;

(dd) the legislative functions of Parliament, a provincial legislature or a municipal council;

(ee) the judicial functions of a judicial officer of a court referred to in section 166 of the Constitution or of a Special Tribunal established under section 2 of the Special Investigating Units and Special Tribunals Act, .1996 ( Act 74 of 1996 ), and the judicial functions of a traditional leader under customary law or any other law;

(ff) a decision to institute or continue a prosecution;

(gg) a decision relating to any aspect regarding the nomination, selection or appointment of a judicial officer or any other person, by the Judicial Service Commission in terms of any law;

[Para. (gg) substituted by s. 26 of Act 55 of 2003.]

(hh) any decision taken, or failure to take a decision, in terms of an

provision of the Promotion of Access to Information Act, 2000; or

(ii) any decision taken, or failure to take a decision, in terms of section 4 (1);”

[27] The exercising of the applicant’s discretion to refer the offending conduct to this Court comes at the instance where the applicant is of the view that the conduct is so serious that it warrants a decision by the Court. The offending conduct must therefore be brought before the Court for the Court to decide whether or not the respondent is fit and proper to remain on the roll of attorneys.

[28] In Malan and Another v Law Society, Northern Province [2008] ZASCA 90; 2009 (1) SA 216 (SCA) the following is stated:

“[3] Although the principles applicable to striking-off applications have often been stated, it is necessary to restate them once more to emphasise aspects that tend to be ignored or misunderstood. The Society launched its application under s 22(1)(d) of the Attorneys Act 53 of 1979, which provides that '(a)ny person who has been admitted and enrolled as an attorney may on application by the society concerned be struck off the roll or suspended from practice by the court if he, in the discretion of the court, is not a fit and proper person to continue to practise as an attorney'.

[4] As was said in Jasat v Natal Law Society 2000 (3) SA 44 (SCA) ([2000] 2 All SA 310) at para 10, s 22(1)(d) contemplates a three-stage inquiry:

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 'in the discretion of the court' is 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 judgment.

And third, the court must inquire 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.

[5] As far as the second leg of the inquiry is concerned, it is well to remember that the Act contemplates that where an attorney is guilty of unprofessional or dishonourable or unworthy conduct different consequences may follow. The nature of the conduct may be such that it establishes that the person is not a fit and proper person to continue to practise. In other instances the conduct may not be that serious and a law society may exercise its disciplinary powers, particularly by imposing a fine or reprimanding

the attorney (s 72(2)(a)). This does not, however, mean that a court is powerless if it finds the attorney guilty of unprofessional

conduct where such conduct does not make him unfit to continue to practise as an attorney. In such an event the court may discipline

the attorney by suspending him from practice with or without conditions or by reprimanding him: Law Society of the Cape of Good Hope v C 1986 (1) SA 616 (A) at 638I - 639E; Law Society, Cape of Good Hope v Berrangé 2005 (5) SA 160 (C) ([2006] 1 All SA 290) at 173G - I (SA) and 302 (All SA).

[6] As pointed out in Jasat, the third leg is also a matter for the discretion of the court of first instance, and whether a court will adopt the one course or the other depends upon such factors as the nature of the conduct complained of, the extent to which it reflects upon the person's character or shows him to be unworthy to remain in the ranks of an honourable profession, the likelihood or otherwise of a repetition of such conduct and the need to protect the public. Ultimately it is a question of degree. It is here where there appears to be some misunderstanding.

[7] First, 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.”

[29] At no stage did the applicant discipline, fine or suspend the respondent. As such, the exercising of a discretion to refer the respondent’s conduct to the Court for the Court's determination of her status as an officer of the Court, does not fall within the definition of administrative action. So too does the exercise of the applicant’s discretion not adversely affect the rights of the applicant and does not have a direct, external legal effect.

[30] The applicant contended that due to the fact that the conduct of the respondent does not constitute administrative action, the application to compel and the review application in its entirety constitute nothing more than delaying tactics, envisaged to derail the finalisation of the striking application. I am in full agreement with this contention.

[31] The Courts, including the Supreme Court of Appeal (SCA), have repeatedly pronounced that sui generis disciplinary proceedings are not normal civil proceedings. The LPC (applicant) merely brings the attorney before Court by virtue of a statutory right and informs the Court as to what the attorney has allegedly done and asks the Court to exercise its disciplinary power. It does not institute any action or civil suit against the attorney. It merely submits to the Court facts which it contends constitute unprofessional, dishonourable and unworthy conduct.

[32] The technical defence raised by the respondent that the applicant failed to follow its own procedures relating to conducting disciplinary proceedings, is moot. It is not peremptory for the applicant to have pursued formal charges before a disciplinary committee, if in its opinion’ the respondent was no longer a fit and proper person to continue to practice as an attorney. The applicant may proceed with an application to strike without pursuing a formal charge before a disciplinary committee if in its opinion, having regard to the nature of the charges, a practitioner is no longer fit and proper to remain on the roll of attorneys.

[33] In my view, the “decision” that the applicant now seeks to review does not constitute ‘administrative action’ due to the fact that it is not a decision at all. The applicant deferred to this Court in terms of section 22(1)(d) of the Attorneys Act. The aforesaid referral does not constitute administrative action, as envisaged by section 1 of PAJA.

The application to compel and the Rule 6 (5) (d) (iii) notice.

[34] The respondent filed and served an application to compel the applicant to file the record of the proceedings that sought to be reviewed, corrected and set aside in terms of Rule 53 (1) (b), together with the reasons for the decision/resolution to apply to Court for the suspension and removal/striking off. The applicant failed to comply with the request. A notice in terms of Rule 30 A (1) was served on the applicant’s attorneys calling on them to comply with the notice in terms of Rule 53 (1) (b). The applicant also failed to comply with the Rule 30 A (1) notice. Instead, the applicant filed a notice to oppose the Rule 53 (1) (b) application and also a notice in terms of Rule 6 (5) (d) (iii) on a point of law. In essence, the applicant sought a dismissal in limine of the respondent’s Rule 30 A (1) application, the application to compel and the review application. As alluded to earlier, the applicant need not at first conduct a disciplinary hearing before it can decide to apply to Court for the suspension and or removal/striking off of an attorney in terms of Section 72 (6) of the Attorney’s Act.

[35] Furthermore, the decision or resolution taken by the applicant to apply to court for the suspension and or removal/striking off of the name of an attorney from the roll of attorneys, is not a decision as defined in section 1 of PAJA. The decision to refer the offending conduct to the Court comes at the instance where the applicant is of the view that the conduct is so serious that it warrants a decision of the Court to decide whether or not the practitioner is fit and proper to remain on the roll of attorneys.

[36] As previously stated, an order for the suspension of the respondent was already granted by this Court. Only thereafter did the respondent challenge the decision/resolution of the applicant to apply to court for her suspension and or removal/striking off of her name from the roll of attorneys. This comes after the fact. Therefore, the contention by the applicant that this is merely a delaying tactic employed by the respondent. It is for these reasons that the prayers as set out in paragraphs 1 and 2 of the order, were granted.

[37] The applicant prayed for a special cost order on an attorney and client scale, due to the conduct of the respondent. Not only is it custom that in applications of this nature, costs shall be awarded on the punitive scale as between attorney and client, but the conduct of the respondent in being obstructive and not to co-operate fully from the onset with the applicant and Reddy, justify the awarding of such a punitive cost order. This is to mark the Court’s disapproval and disquiet with the unprofessional and unethical conduct of the respondent.

Conclusion

[38] Having regard to the facts of this matter, the seriousness of the transgressions complained of as well as the interest of the public, I am of the view that the respondent is no longer a fit and proper person to continue to practice as an attorney and her name should be removed/strike off from the roll of attorneys. Therefore, an order is granted in the terms as set out in paragraphs 3 to 14 under the heading: Order.

________

R. D. HENDRICKS

DEPUTY

JUDGE PRESIDENT OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

I agree.

B. R. NONYANE

ACTING

JUDGE OF THE HIGH COURT