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Mosen v Law Society of the Northern Provinces (15588/2000) [2006] ZAGPHC 112 (3 November 2006)

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THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)
DATE: 03/11/2006
CASE NO: 15588/2000

UNREPORTABLE

In the matter between
TIEGO MOSEN                                                                     Applicant

and
('
THE LAW SOCIETY OF THE NORTHERN PROVINCES                 Respondent
                                                                                                           

JUDGMENT
                                                                                                           
LEACH, J
 This is an application for leave to appeal.
 As the respondent in these
 proceedings was the applicant in the main application, I shall refer to it as "the
 Law Society" in order to avoid confusion.
 In the main application, the Law Society applied to strike the applicant's name
 from the roll of attorneys. We concluded that the applicant was indeed not a
 fit and proper person to be on the roll and that, despite him no longer
 practising as an attorney, his name should be removed from it. Subsequently,
 by way of a notice, dated 27 June 2006, the applicant applied for leave to
 appeal. In response, the Law Society filed a notice to the effect that if leave to
 appeal be granted, this court should direct the applicant to provide security for
 the costs of the appeal.

"
 2
 In regard to this latter issue, when the matter came before us on 22
 September 2006, counsel for the Law Society, Mr Louw, submitted that the decision in MV Navigator (No 1): Wellness International Network v MV
 Navigator 2004 (5) SA 10 (C) at 34 -to the effect that only the Supreme Court
 of Appeal, and not this court, can order security for costs - had been wrongly
 decided.
 As that issue will only be relevant should leave to appeal be
 granted, it is to the latter issue that I promptly turn.
 In applying for leave to appeal, the applicant detailed no less than fifty nine
 grounds of appeal. In advancing his argument, Mr Semenya, who appeared
 for the applicant, did not attempt to address these fifty nine grounds. Instead
 he contended that there were two elements of the judgment upon which
 another court could reasonably come to a different conclusion, viz. (a) the
 finding that the applicant had misappropriated trust funds, and (b) those
 findings to the effect that the applicant had been guilty of dishonourable
 conduct. In regard to these issues he handed in a set of written submissions
 which summarized his argument, stating that it was impractical to attempt to
 identify which of the particularised grounds of appeal were persisted in or
 abandoned. For present purposes I shall therefore proceed on the basis that
 his written submissions contain the grounds of appeal.
 Dealing firstly with the question of the misappropriation of trust funds, it is
 correct, as was pointed out by Mr Semenya, that we found that there had been misappropriations in the matters of Motsepe,1 Maleka, 2 The Gauteng
                                   
1 Main judgment para [84] and [85].

3
 Housing Board3 and Ratsela4, I did not understand Mr Semenya to dispute that we had erred in finding that there had been such misappropriations - but
 he argued that, as it had not been shown that the applicant had been
 personally responsible for such misappropriations, another court could find
 that a sanction other than striking off was appropriate.
 Had the applicant not made himself guilty of misappropriating trust funds,
 there may have been some merit in this argument. Unfortunately, it is clear
 that he was personally responsible for certain misappropriations. And while
 our conclusions in regard to Motsepe, Maleka and the Gauteng Housing
 Board do not necessarily show that the applicant was personally responsible
 for misappropriating money from them, there can be no doubt that he was
 involved, at the very least, in financial impropriety in the Ratsela matter.
 In that case we found that an amount of almost R 125 000,00 held in trust on
 behalf of Ratsela had been misappropriated. This finding was not attacked,
 but Mr Semenya submitted that the evidence did not point to the applicant as
 being the person actually responsible, as his partner, Mr Moloto, had dealt
 with the matter and the applicant only came into the picture when Ratsela
 complained about the manner in which his case had been handled.
 It was common cause that Ratsela had been a trust creditor in the sum of
 R124 841,76 from 13 August 1998 until 31 January 19995 when two debits of
                                                                                                   
2 Main judgment para [93].
3 Main judgment para [145].
4 Main judgment para [164].
5 The reference in para [161] of the judgment to 31 January 1994 is a typographical error.

3
 R64 052,02 and R11 000,00 were raised as "all inclusive fees" against the amount being held in trust, of which R74 051,87 was transferred to the firm's
 business account - thereby reducing the trust liability owed to Ratsela to R49 789,89 at the end of January 1999. 6 The books reflect that the following day,
 a fee reversal of R75 052,02 (the total of the so called "all inclusive fees"
 raised the previous day) was made. The applicant attempted to explain this
 by stating that he had decided to reverse the fee after Ratsela had discussed
 the matter with him on 18 February 1999, but that of course does not hold
 water as such discussion took place 18 days later.
 Importantly, a deposit of R500 000,00 was made into the applicant's trust
 banking account on 22 February 1999. This was done without any indication
 of the identity of the account, nor the source of its payment, and it was not
 identified as a trust investment under s 78(2A).
 Shortly before, on 19
 February 1999, the applicant had drawn a cheque in Ratsela's favour in an
 amount of R125 000,00 and, without the deposit of R500 000,00, which was
 clearly an amount paid in by the applicant, there would not have been
 sufficient funds to meet this cheque when it was presented for payment.
 In these circumstances, as Mr Louw argued, it is necessary to infer that the
 "fees" levied at the end of January 1999 were designed to hide or reduce the
 trust deficit which then existed for the month-end reconciliation, whereafter
 they were reversed. This was done after Moloto had left the firm.
                           
6 See report Faris "MNM 1" vol.6 pg.718 at 754 para [7.3]

5
 Furthermore, as is apparent from Farris's report, 7 save for the months October
 and November 1998, there had been insufficient funds kept in trust to meet the trust liability to Ratsela until the payment of R500 000,00 was made on 22
 February 1999. Consequently, when the full amount of the trust liability to Ratsela was subsequently paid by the applicant, he needed to use his
 personal funds (the R500 000,00 paid into trust on 22 February 1999) to do
 so. This shows dishonesty and financial impropriety on the part of the
 applicant himself.
 Then, and most importantly, there is the matter of Rolls Royce8. It was argued
 by Mr Semenya, that another court might find the entire Rolls-Royce matter
 had not been properly raised as an issue and, therefore, should not have
 been considered in the assessment of the applicant's fitness to remain an
 attorney. This argument was based upon a refinement of his argument a quo
 in which he relied on the decision in Incorporated Law Society v Van Os 1906
 TS 733, and which is dealt with at paras [24]-[39] of our judgment in the main
 application. I did not understand Mr Semenya to dispute our finding that we
 had not been limited solely to the original complaints. Rather, I understood
 him to contend that the issue of whether the applicant had misappropriated
 moneys belonging to Rolls-Royce had not been raised specifically in the
 papers and was not encompassed by either the order of Van der Walt and
 Kirk-Cohen JJ on 28 January 2002, or thereafter, by our order of 13 June
 2005.
                                    
7 Vol.6 pg.755 para [7.7]
8 Dealt with at paras [151 ]-[160] of the judgment

6
 The order of Van der Walt and Kirk-Cohen JJ provided for an unlimited investigation into the applicant's books as, at that stage, neither the court nor
 the Law Society had no real idea about the state of the firm's financial records
 or what they might show. It was in order to ascertain whether there had been
 a misappropriation of trust funds that the court then ordered an unlimited and unhindered investigation into the applicant's accounting records. 9 Despite the
 terms of that order, the applicant failed to provide his full co-operation to
 facilitate a full investigation.
 Consequently, on the information that was
 available to him, Faris not only reported that there had been substantial trust shortages10 but attached to his report11 a summary of matters which required
 further information and explanation from the applicant12 one of which was to
 "explain in detail the entries and nature of transactions in the Rolls-Royce
 PLC matter, especially why R1 090 000 was deposited into the business banking account” 13 It was in response to this challenge that the applicant
 explained that the amount it had received from Rolls-Royce was held on its
 behalf and dealt with "... as per clear and instructions of client. All the
 payments and transfers were on the express direction of the client (a stance
 he has now abandoned). 14 As Faris commented in his subsequent report
 annexed to the Law Society's supplementary affidavit, it is significant that the
 applicant did not explain the transfer of R1 090 000,00 into his business
 banking account15 and this was clearly one of the issues, which he went on to
 comment, had not been dealt with to his satisfaction and in respect of which
                                    
9 See judgment para [13].
10 See judgment para[15].
11 Annexure EE at vol 6 p899-901.
12 See vol 6 p780 para.20.2.
13 Vol 6 p901 item 18.
14 Vol 6 p949-950.
15Vol 6 p988 para 16.

7
 his attempts to ascertain the true position had been frustrated. In a purported
 attempt to clear up the matter, the applicant dealt in his supplementary affidavit with the manner he had dealt with the Rolls-Royce funds and the
 payment of the amount in excess of R 1 million into his trust account. 16
 It is clear from this that the ambit of the inquiry to be conducted by the court
 was widened by the order of 20 September 2001 to incorporate whatever
 questions might arise from the investigations to be conducted by Faris. Those
 issues included the accounting relating to the Rolls-Royce funds paid into
 trust and, in particular, why an amount in excess of R1million was paid into the applicant's business account - issues later "explained” 17 by the applicant
 in his supplementary affidavit.
 The Rolls-Royce matter is also relevant to the correctness of the
 qualifications expressed in the rule 70 certificate of Mr Moosa, whether there
 existed trust shortages at any stage, and whether any bookkeeping
 contraventions were committed - and, therefore, also falls within the aegis of
 paragraphs 1.9, 1.10 and 1.11 of our order of 13 June 2005. 18 It is not without
 significance that the applicant never objected to Faris's evidence in regard to
 the Rolls-Royce entries as being irrelevant and, indeed, Faris was cross
 examined in regard to the matter.
 It was thus clearly, and obviously,
 understood by all concerned to be an issue before court, and I do not think
 there is any prospect of another court holding to the contrary.
                                    
16 Vol. 7 p.1083 para 14.9.
17 Although, for the reasons set out below, his explanation cannot be believed.
18 Quoted at judgment para [22].

8
 Turning to the merits of the Rolls-Royce issue, it would be superfluous to repeat our reasoning in regard to this aspect of the case19. Suffice it to say
 that an amount in excess of R1,9million was received into the firm's trust
 banking account in the name of Rolls-Royce on 14 June 1999 and was
 thereafter the source of a number of payments, including R12 000,00 paid to
 a trust account in the name of Grinaker Housing, R75 000,00 paid into a trust
 investment account in the name of Johannesburg Metropolitan, R408 000,00
 paid to New Diamond Corporation (which the applicant proceeded to join
 shortly thereafter) and over R1 million paid into the applicant's business
 account. In addition, the sum of R265 000,00 was transferred out of the
 Rolls-Royce funds into a Nedbank investment account and then promptly
 used to pay R258 411,36 to the Gauteng Housing Board which had been
 putting the applicant under considerable pressure to repay the funds he had
 been holding on its behalf. None of these payments can be justified by any of
 the documentary evidence available, and without the respondent furnishing an
 adequate explanation for making them, we concluded that most of these
 amounts had probably been misappropriated by him.
 In seeking leave to appeal, it was argued on behalf of the applicant that there
 was nothing inherently improbable about the explanation he had tendered,
 albeit indirectly through what his counsel put in cross examination, that the
 amount in excess of R1 million paid into his account was in fact a fee for work
 done to which he was entitled.
 However, in his opposing papers, the
 applicant had stated that he had received the amount into trust on behalf of
                           
19 It is set out at paras [151]-[160] of the judgment.

9
 Rolls-Royce on whose specific instruction he had made the various payments. Inter alia, in his supplementary affidavit, he said: 20
 "I …. restate that all the amounts in the Rolls Royce matter I dealt with in a manner directed by the client, I have accounted to them in full and there has been no complaint from them. Mr Faris raises the issue of the transfer of the amount of R1, 090,000.00. I was directed by clients to so treat the amount which was being made available for the advancement of a strictly confidential high security project within the security and justice system."
 In the light of this, and as a fee of more than R1million could not have just
 been forgotten by the applicant, we rejected his later contention that the
 payment had been a fee as being devoid of all truth. If it had been a fee, he
 would surely have stated that to have been the case from the outset. It is also
 important to note that after it had been put in cross examination that the entire
 R1,9million received from Rolls Royce had been a fee, Mr Louw immediately
 asked for all documents reflecting the levying of such fee to be produced for examination. 21 Despite this request, the applicant was unable to produce any
 documentary proof in support of this allegation. In the light of all of this, I have
 no reason to think that there is any prospect of another court concluding that
 either the entire R1,9million which was received into the trust account
 purportedly on behalf of Rolls-Royce or that the amount in excess of R 1 million
 transferred from that account into the firm's business account was a fee to
 which the applicant was entitled.
 It was also argued on behalf of the applicant that Faris had elected not to
 contact Rolls-Royce to establish whether it had any concerns in regard to the
                                    
20 At voL? p1083 para 14.9.
21 It must be remembered that for some reason which was never explained the applicant never made a formal discovery - all he did was to produce certain documents during the course of the hearing.

10
 manner in which its mandate had been handled and that Rolls-Royce could have provided information to contradict any suggestion that there had been a
 misappropriation. Not only is sauce for the goose also sauce for the gander,
 but the fact that the Law Society did not obtain any information from Rolls
 Royce is, in my view, neither here nor there. After all, Rolls-Royce had no
 knowledge of how the applicant dealt with its funds and, even if it had no
 complaints, the applicant may well have laid his hands on other funds to use
 to eventually enable him to fulfil his mandate relating to the R1,9million it had
 paid him.
 What is of importance, is the fact that it appears from the firm's books that
 those funds were used to pay various trust creditors, and the argument
 advanced in seeking leave to appeal that the funds transferred to trust
 investment accounts in the names of Grinaker Housing and the Johannesburg
 Metropolitan did not constitute payments to them, as the funds remained in
 trust, cannot be sustained. Funds reflected as being held in trust on behalf of
 Rolls-Royce were paid into other trust accounts in which funds belonging to
 those two entities were held, and the fact that the funds remained "in trusf' is
 irrelevant.
 In addition, as I have mentioned, more than R400 000,00 was transferred
 from Rolls-Royce's funds into the account New Diamond Corporation, a
 company the applicant promptly proceeded to join shortly thereafter when he
 ceased to practice. His explanation offered in his affidavits that it and the
 other payments made to his trust creditors out of Rolls-Royce's funds were

11
 made on Rolls-Royce's instructions, was abandoned when it came to cross
 examination and remained unexplained. Unsupported by any documentation,
 the applicant's explanations of these book entries are so inherently untruthful
 that the only inference which can be drawn is that the applicant
 misappropriated Rolls-Royce's funds by making all these payments, and I see
 no reasonable prospect of another court concluding otherwise.
 In the light of all of this, there seems to me to be no prospect of another court
 finding that the applicant was not personally guilty of the misappropriation of
 trust funds. Not only did he clearly misappropriate Rolls-f1oyce's moneys, but
 he attempted to cover up the misappropriation of Ratsela's money. As there
 can be no prospect of another court concluding otherwise, that really puts
 paid to the matter as, on the strength of these allegations alone, there seems
 to me to be no prospect of another court concluding that the applicant should
 not be struck from the roll of attorneys - even if it has not been shown that he
 was the person actually responsible for the other misappropriations of trust
 moneys which occurred while he was a partner of the firm.
 Notwithstanding this last observation, I shall, for completeness, deal with the
 remaining contentions raised on behalf of the applicant.
 In relation to our findings in regard to the complaints of Mogano and Sefatsa22
 who purported to withdraw their complaints against the applicant, it was
 submitted by Mr Semenya that, as they had indicated that they had been
                           
22 Dealt with at para [66] of the judgment in the main application

12
 acting freely and voluntarily and their affidavits were attested before an
 independent commissioner of oaths, another court might find that the
 applicant's conduct did not amount to an attempt to subvert the course of
 Justice.
 It is quite clear that neither Mogano and Sefatsa would have signed the
 affidavits if the applicant had not coerced them into doing so, and that he did
 so at a time when he knew that the Law Society had resolved to bring
 proceedings against them on the strength of their complaints.
 I see no
 prospect of another court finding that his actions, which were carried out
 without notice to the Law Society, were not unethical or that they did not fall
 short of the high standards expected from an attorney.
 It was then argued that although we had found that the applicant should have
 ensured that Mogano was represented during the meeting at which she
 withdrew her complaint, the applicant had not acted dishonourably as he had
 advised her to seek independent legal advice, which she declined to do. In
 fact, our finding was that the applicant's failure to ensure that Mogano was
 represented not only smacked of an abuse of the position of influence he held
 as an attorney, but showed a deplorable lack of insight into his obligations to a
 client whose claim his firm had allowed to prescribe, and that the applicant
 should never have become a party to a settlement agreement with Mogano
 without ensuring that she was represented. I have no doubt that another
 court will not conclude otherwise. Justice must not only be done, it must be
 seen to be done, and an attorney who has allowed a client's claim against a

13
 third party to prescribe should never conclude an agreement settling his
 client's resultant claim against him without ensuring his client takes
 independent advice.
 In regard to the Mogano issue, Mr Semenya argued further (I quote from his
 written submissions):
 “The Court found that the applicant had agreed to pay Mogano an amount of R25 000.00 (Twenty Five Thousand Rand) and has failed to do so. Again, the applicant was never charged for failure to pay R25 000.00 to Mogano as previously agreed. On the contrary, the evidence shows that the applicant had advised Mogano that if the legal opinion indicated that the firm was liable, the opinion would be used as a basis for settlement discussions with her".23
Although the applicant may not have been specifically charged for failing to
 pay the R25 000,00 to Mogano as he had agreed, a full explanation of the
 circumstances surrounding the withdrawal of her complaint was one of the
 issues we referred for the hearing of evidence. It was during her evidence
 that Mogano volunteered the information that she had not been paid. This
 evidence was never objected to on the basis that it was irrelevant and,
 importantly, it was also not disputed under cross examination.
 It must,
 therefore, be regarded as having been common cause.
 In addition, it was clear from the evidence that the issue which was referred
 .
for an opinion from counsel was in regard to the firm's liability to Mogano as
 her actual damages arising from her personal injuries clearly exceeded the
                                    
23 Vol 9 Pg 823 line 20 to 26; Vol 9 pg 798 of the transcript, lines 15 to 20; pg 810 lines 2 to 5; pg 822, lines 10 to 15

14
 amount she was entitled to recover from the MVA Fund against whom her
 claim had prescribed. This is not a case in which an opinion was going to
 form a basis for settlement discussions on the quantum of damages the
 applicant should pay, as contended by Mr Semenya in the paragraph quoted
 above - it was required on the issue of whether the firm was liable and, if it
 was to that effect, the applicant undertook to pay Mogano the amount she
 would undoubtedly have recovered from the MVA Fund. The opinion was that
 the firm had been negligent, so that it was liable for payment of the sum of
 R25 000,00 which Mogano would have recovered from the Fund. There is no
 reason to think another court will find the applicant did not give the
 undertaking to pay Mogano that sum or that he has not reneged on that
 undertaking.
 I turn now to deal with the matter of Phiri. 24 In regard to this issue, it was
 submitted that the applicant's explanation for having placed the incorrect
 information before court was due to the fact that he had not had the file
 available to him when he drew his papers and had relied upon information
 conveyed to him by one of his former partners. It was, therefore, suggested
 that there was a considerable difference between an incorrect statement and
 a falsehood. However, we did not find that the applicant had deliberately
 placed false information before court - rather that the information was false as
 it was incorrect. The importance of this is that a court is entitled to expect an
 attorney in the applicant's position to give a proper and correct explanation.
 He did, after all, depose to the facts under oath.
                                    
24 Dealt with in our judgment at paras [72] to [77].

15
 By the same token, these comments are also of application to the allegation
 that we had found that the applicant had misled us in stating, without having had sight of the file, that the Maleka matter related to a divorce, whereas it
 had in fact related to a post-divorce division of a joint estate. In the overall
 scheme of things, this was not a matter of major import, but one would have
 expected more care from an attorney, especially in a matter of this nature.
 The failure to provide a proper and correct explanation is also relevant to a
 further criticism of our judgment, viz. that we had held the applicant's failure to
 testify against him, it being suggested that there had been no duty on him to
 do so. It may well be, as was submitted by Mr Semenya, that the applicant
 had elected not to testify and that another court might conclude that the
 manner in which he had conducted his "defence" was a function of possibly
 misplaced strategy, which does not lead to the inference that he intended to
 be obstructive. It is clear, however, that he was obstructive. As is apparent
 from a reading of our judgment, his unwillingness to co-operate with the Law
 Society in its investigations was self evident. We have dealt at some length with his lack of co-operation,25 and I do not think there is any reasonable
 prospect of another court concluding anything but that he was obstructive.
 In regard to the complaint of attorney Moroko26 who had to issue summons to
 recover an admitted debt, it was argued that we had afforded insufficient
 weight to the fact that the applicant was not personally responsible for such
 liability and that the amount due was ultimately paid. There is no validity in
                                    
25 At paras [172] to [175] of the judgment.
 26 See paras [94] to [98] of the judgment.

16
 this criticism. The applicant told Moroko that a cheque was in the post and
 summons was thereafter only issued when that averment was shown to have
 been false. The applicant then proceeded to defend the action, knowing that
 he had no defence. He used the process of the court to delay paying an
 amount he admitted he owed. There is no prospect of another court finding
 that his conduct in this regard was anything other than unprofessional,
 dishonourable and unworthy of an attorney, even if he did ultimately pay the
 debt.
 Turning to the complaint of Motsepe, 27 it was argued that we had erred in
 finding that the applicant's offer to pay him R 1 000,00 had been accepted as
 the evidence established that Motsepe had communicated his acceptance to
 the Law Society and not to the applicant, and that the Law Society had not
 told the applicant that his offer had been accepted. For the reasons set out in our judgment on this issue28 even if the acceptance of the offer was not
 communicated to him, there can be no excuse for Motsepe not to have been
 paid and his failure to pay constituted unprofessional or dishonourable or
 unworthy conduct as envisaged by the Law Society's rules. In my view, there
 is no prospect of another court finding otherwise or finding that the applicant's
 failure to pay should not have been taken into account in assessing his fitness
 to remain on the roll of attorneys.
 It was then submitted that this court had been unduly critical of the applicant's
 non-appearance at various disciplinary hearings conducted by the Law
                                    
27 See paras [78] to 86] of the judgment.
28 Paras [84] and [85] thereof.

17
 Society, particularly as he had apologised for his non-appearance - as Mrs
 Malatji, the head of the Law Society's disciplinary division, had testified. 29
 However, as Mr Louw correctly pointed out, this apology related only to the
 second disciplinary committee hearing and that the applicant had then failed
 to appear at the next disciplinary committee hearing. In addition, his apology
 was somewhat hollow as he had received four different notices for the second
 hearing but still did not attend and continue to blame his secretary for his
 failure in that regard. I do not think there is a reasonable prospect of another
 court finding that we were unduly critical of the applicant's failure to attend the
 various disciplinary hearings. 30
 While Mr Semenya expressly did not take issue with the finding that the
 applicant had practised without a valid Fidelity Fund Certificate for both the
 years 1999 and 2000, he submitted that we had not paid adequate weight to
 the evidence that the applicant had been winding down his practice, was
 taking no new instructions and only dealt with work relating to New Diamond Corporation (and of course instructed counsel to deal with "the crisis” 31 which
 arose from the complaint laid by Mrs Mogano). While it may be that his work
 was restricted in 2000, there is nothing to indicate that to have been the case
 in 1999.
 According to Mr Mokolo, the firm was then still dealing with
 Johannesburg Metropolitan matters and there was evidence of substantial
 money still being dealt with in the trust accounts. In these circumstances, the
 failure to have the necessary certificate is a serious infraction of his duties as
 an attorney.
                                    
29 Record p 737-8.
30See paras [107] to [112] and [172] of the judgment.
31 I use counsel's description.

18
 Relying in particular upon the recent, presently unreported, decision of the
 Supreme Court of Appeal in Summerley v The Law Society of The Northern Provinces32 Mr Semenya submitted that another court might reasonably come
 to the conclusion than a sanction less penal than a striking off would be
 sufficient. The decision in that case stressed that although each case must
 be judged in the light of its own particular facts and circumstances, generally
 speaking, transgressions not involving dishonesty are usually visited with the
 lesser sanction of suspension from practice rather than striking off which, as
 the profession demands complete honesty, is appropriate in cases of dishonesty. 33
 In the present matter, however, as I have stressed both above and in my
 judgment in the main application, there can be no doubt whatsoever that the
 applicant made himself guilty of serious transgressions involving dishonesty
 and the misappropriation of substantial trust funds, and I see no prospect of
 another court reaching a different conclusion that regard. The cumulative
 effect of that finding, taken together with the numerous other transgressions
 he admittedly committed (not all of which were raised in this application) leads
 me to the inescapable conclusion that there is no reasonable prospect of
 another court finding that the applicant is a fit and proper person to be an
 attorney or that we erred in the exercise of our discretion in striking his name
 from the roll.
                                    
32 [2006] SCA 59.
33 Para [21] of the judgment.
19
Taking all of the above into account, the applicant has failed to establish the
 necessary prospects of success for leave to appeal to be granted to him, and the application must accordingly fail. This renders it unnecessary to deal with
 the question of security for costs that I mentioned at the outset.
 The application is dismissed with costs.
 L.E. LEACH
JUDGE OF THE HIGH COURT
McLAREN, J
 I agree, and it is so ordered.