South African Legal Practice Council v Jacobson (92401/2019) [2020] ZAGPPHC 697 (26 November 2020)

IN THE HIGH COURT OF SOUTH

AFRICA

(GAUTENG DIVISION, PRETORIA)

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED.

26-11-2020

CASE NO: 92401/2019

In the appeal of:

SOUTH

AFRICAN LEGAL PRACTICE

COUNCIL

Applicant

and

CHRISTINA

MAI

JACOBSON

Respondent

Coram: G. T Avvakoumides AJ and J.E. Dlamini AJ

JUDGMENT

AVVAKOUMIDES, AJ

1. On 25 August 2020, a draft order provided to the court by the Applicant was made an order and marked "X". The reasons for the order were reserved and the purpose of this judgment is to furnish the reasons.

2. In terms of the order the Respondent has been suspended from practising as a legal practitioner pending finalisation of the main application and has been called upon to show cause, on or before 9 March 2021, why her name should not be struck from the Roll of Legal Practitioners. The additional relief granted to the Applicant against the Respondent is the usual relief in matters of this nature and it is unnecessary to repeat each paragraph of the order.

3. The application comprises an inquiry by the court into the question whether the Respondent is a fit and proper person to remain on the Roll of Legal Practitioners. Furthermore, whether the Respondent's conduct has been established on a preponderance of probabilities. In addition, the application is aimed at establishing whether or not the Respondent is a fit and proper person to continue to practice as an attorney and ultimately what sanction is to be imposed by the court. The Applicant satisfied the court that a proper case had been made out for the relief granted.

4. The Respondent was admitted as an attorney of this Court on 3 July 2009. She practised as a single practitioner for her own account since 2 August 2020 under the name Jacobson (C) Attorneys. The application was served upon the Respondent personally on 11 January 2020 and the notice of set down was served upon her father (upon the Respondent's request) on 19 February 2020. Consequently, the Respondent was aware of the application which was set down for hearing on 25 August 2020 and did not file any papers or appear at court.

5. Upon commencing with her practice of 2 August 2010 the Respondent was required to file an opening auditor's report on or before 28 February 2011 and failed to do so. The then Law Society addressed repeated requests to the Respondent to which she did not respond. The Respondent was thereafter notified to appear before a Disciplinary Committee of the Council of the Law Society to answer for her failure to comply with the Director's Directions and for her failure to file the required report. The Respondent failed to attend the proceedings which were consequently postponed.

6. The Respondent further failed to submit her annual auditor's report to the erstwhile Law Society and to the current Legal Practice Council for the periods ending 28 February 2011 to 28 February 2019. These reports were due by 31 August of the respective years. She was then notified to appear before a Disciplinary Committee of the Council of the Law Society for her failure to file the auditor's report for the period ending 28 February 2011, which she failed to attend and was ultimately found guilty and fined in the amount of R3 000.00.

7. Following the disciplinary hearing the Law Society addressed further letters to the Respondent informing her of the imposition of the fine and her failure to pay such fine. No response was forthcoming, and the Respondent failed to pay the fine imposed.

8. It is trite that a Fidelity Fund Certificate can only be issued to a legal practitioner if an unqualified auditor's report is filed with the relevant authority. The failure to submit an unqualified auditor's report disentitles a practitioner to be issued with a Fidelity Fund Certificate. One of the fundamental requirements for a Fidelity Fund Certificate is to protect the general public from any financial loss as a result of theft of trust monies which may be committed by a practising attorney or any of his/her employees. The continued practice of the Respondent without being in possession of a Fidelity Fund Certificate does not comply with the peremptory norms of the previous Attorneys Act and the current Legal Practice Act and this conduct constitutes an offence under both acts, thus rendering the Respondent liable to a fine and/or imprisonment.

9. Since 1 January 2012, the Respondent has continued practising as an attorney for her own account without a Fidelity Fund Certificate. The Respondent has further failed to pay her membership fees to both the Law Society and the Legal Practice Council since 2012 and consequently the Applicant submitted that the conduct complained of has been established on a preponderance of probabilities.

10. The Respondent has consistently failed to comply with the lawful obligations upon her as an attorney and notwithstanding intervention measures by the applicable authority and the commencement of these proceedings, she has simply failed to undertake any corrective measures nor has she proffered any explanation to the court for her conduct. Consequently, the Respondent's conduct does not meet the standard of behaviour, conduct and reputation which is required of attorneys and officers of the court. The Applicant submitted that for these reasons, the Respondent can no longer be considered to be a fit and proper person and to be permitted to practice as a member of the legal profession.

11. Having established that the Applicant has proven the conduct complained of on a balance of probabilities and successfully has shown that the Respondent is not a fit and proper person, the question arises as to what sanction should follow. Under the prevailing circumstances I am of the view that the Respondent should not be permitted to continue to practice as an attorney. The mere disregard by the Respondent of her obligations and her failure to react whatsoever to the current application justifies the order of suspension granted on 25 August 2020. The above constitutes the reasons for the draft order marked "X" and dated 25 August 2020.

G.T.

AVVAKOUMIDES

ACTING

JUDGE OF THE COURT

GAUTENG DIVISION, PRETORIA

I agree

J.E. DLAMINI

ACTING JUDGE OF THE HIGH COURT

Representation for parties:

For applicant: Attorney L. Groome

Instructed by: Rooth & Wessels

For Respondent: No appearance