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.