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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 12991/2017

In the matter between:

THE LAW SOCIETY OF THE NORTHERN PROVINCES                            Applicant

and

PAULUS LEPEKOLA SAMUELS                                                                 Respondent

JUDGMENT

PHAHLANE, AJ

[1] This is an application brought by the Law Society of the Northern Provinces ("the Law Society") in terms of section 22(1)(d) of the Attorneys Act, 53 of 1979 ("the Act") for the removal of the respondent's name from the roll of attorneys.

[2] The Attorney's Act has been repealed in terms of section 119 of the Legal Practice Act 28 of 2014 (LPA). In terms of section 116 (2) thereof, any proceedings in respect of the suspension or removal of the name of any person from the roll of attorneys which has been instituted in terms of the law repealed by this Act, and which has not been concluded at the date when this Act came into operation, is to be continued and concluded as if the law had not been repealed and any reference to the Law Society must be construed as reference to the Legal Practice Council.

[3] The respondent was admitted as an attorney on 19 November 1991. He has been practicing as an attorney under the name and style of PL Samuels Attorneys, as a single practitioner in Johannesburg, Gauteng Province and his name is still on the roll of attorneys.

[4] Following an urgent application on 23 March 20171 by way of an order of this court, the respondent was suspended from practising as an attorney pending finalization of the application to strike him from the roll in terms of Part B of the Notice of Motion and the concomitant relief as set out in paragraphs 1.3 to 1.12 thereof. Leave to appeal this order was subsequently granted but the respondent has to date not prosecuted the appeal. On 7 May 2019, the matter was placed on the court roll for the application in terms of Part B referred to above, but the matter was postponed sine die. On 15 October 2019 Notice of Set Down was served on the respondent's attorneys informing them that the matter was set down for hearing on 30 April 2020.

[5] On 14 April 2020 the respondent addressed an unsigned letter to the applicant's attorney, Mr A. Bloem, in which he raised the following issues which in my view, should be noted:

1. "The writer hereof continues not to have legal representation and is unable to access same during lockdown period which has been extended until the end of April 2020 and will therefore be severely prejudiced if the matter continued under these circumstances.

2. in terms of the current directives during the lockdown this matter is not urgent and does not relate to essential services during the lockdown period. In this regard I also refer you to a circular by your client issued to practitioners on Good Friday stressing the importance of the judgment by Brauckman AJ in the Mpumalanga High Court matter and the seriousness with which your client will view the violation by practitioners of the directives during the period of lockdown.

3. May I request that all correspondence should be directed to Rontgen Attorneys who your office is full y aware that it is the legal firm representing me in this matter unless there is any justifiable reasons for not doing so".

[6] On Tuesday 21 April 2020, a certain Jehoshaphat John Njau addressed an email to the applicant's attorneys stating the following:

"/ received a call earlier today from Mr Samuels (our client) as well as email correspondences between yourself and our client in relation to the aforesaid matter which is enrolled for hearing on 30 April 2020.

Unfortunately, due to the national wide lockdown and technical challenges we have experienced as a firm, we have had no access to our office emails and as a result we were not privy to the aforesaid email correspondences which were sent to our office in relation to this matter.

This matter is being handled by our Mr Rontgen Senior who unfortunately not only due to the current national wide lockdown and its subsequent regulations but also his advanced age that of 85 years of age (regarded as a high risk person to contract the virus), has been unable to consult with the client and access the infrastructure required for him to full y prepare for the hearing.

It is therefore our respective submission that our client 's readiness for the hearing has been significantly curtailed and hampered not for reasons brought about by himself but rather by forces outside his control. Proceeding under these circumstances will not only be unfair to our client in the light of the seriousness of the application before court but also go against the interest of justice that calls the versions of both parties to be before court and for parties to be adequately represented.

It is for the above reasons that we ask that the matter be postponed by agreement between the parties with no cost order with parties being allowed to approach the registrar f or a preferential hearing date ".

[7] The following day on 22 April 2020 Mr Bloem on behalf of the applicant responded to this email stating that:

"We refer to your e-mail dated 21 April 2020.

The notice of set down was served on your client's former attorneys on 15 October 2019, more than six months ago.

The proceedings are in the hands of the Court and a full bench of the Court has been arranged for the hearing. The Council's role in the proceedings is limited to referring the facts to the Court and assisting the Court.

The Council is therefore not in a position to consent to a postponement. Should your client seek a postponement, his request should be directed to the Court by way of a substantive application.

The Council's rights are reserved".

[8] This email was not responded to and no application was brought to court by the respondent in this regard, nor were any submissions made, as advised by Mr Bloem. It is rather disturbing to say the least, that the respondent would wait until the last minute to say that he is not ready to proceed with the matter while he had been informed six months prior, that the matter will be proceeded with on 30 April 2020. The respondent seemed to be presenting contradictory versions by firstly indicating that he does not have legal representation and is unable to access same during lockdown period, and then somersault seven days later to say that he has not been able to consult with his counsel Mr Rontgen due to lockdown and Mr Rontgen's age. He also mentions that "in terms of the current directives during the lockdown, this matter is not urgent and does not relate to essential services during the lockdown period".

[9] This reasoning in my view is misplaced because the Practice Directive dated 8 April 2020 'authorized the utilizing of electronic means or platforms in the hearing of matters during the lockdown period with effect from 26 March 2020 midnight'. At the same time, another directive that was issued on 17 April 2020 stated that: "parties wishing to have a matter which has been set down for hearing during the lockdown period removed from the roll, shall jointly do so by issuing a notice in accordance with the practice of the court or Division concerned". Paragraph 7 thereof states that: "should parties be unable to reach an agreement, either party may request that the matter be placed before a case management judicial officer in order to facilitate the expeditious re-enrolment of the matter". (my underlining)

[10] The Practice Directive also indicates that: "with regards to opposed applications, the parties shall endeavor to reach an agreement dispensing with the presentation of oral argument and shall to that end, inform the judicial officer presiding in the matter of their decision by no later than noon on the preceding Friday".

[11] The Practice Directive therefore makes it clear that the respondent had an opportunity open to him to approach the court and have the matter placed before judicial case management or present his arguments before court on 30 April 2020 through visual platforms or other electronic means of hearing of matters, as has been the practice of this Division since the beginning of the lockdown period, to accommodate and entertain all the matters that have been placed on the roll for hearing.

[12] The respondent failed to file heads of argument as was expected by 14 April 2020. I am of the view that the reasons advanced by the respondent in seeking a postponement have no merit and are rejected by this court. The court was satisfied that the applicant has complied with the Practice Directives for setting down the opposed matter, and that despite this, the respondent chose not to appear and present his case before the court. Accordingly, this court was of the view that no substantive application for a postponement had been received and as such, proceeded with the application.

[13] The grounds and circumstances which led to the suspension of the respondent on 23 March 2017 were based on the applicant's contention that there were actual trust deficits in the respondent's trust banking account and that the respondent was, prima facie, engaged in "rolling" trust funds (i.e using one trust creditor's funds to account to another) .

[14] This averment flows from the fact that a sum of money was paid by the Road Accident Fund into the trust account of the respondent for a third party claim provided for past medical expenses, general damages and loss of earnings on behalf of the respondent's client, Ms Mabaso. The past medical and general damages components of the claim were settled in the amount of R170 657,40 on 25 July 2013. Ms Mabaso followed up with the respondent on a regular basis to enquire about the payment of the proceeds of the claim by RAF, whereof on some occasions, the respondent would inform Ms Mabaso that payment had not yet been processed. Not being satisfied with the progress of her case, Ms Mabaso directly approached the RAF and she was informed that the monies have been paid to the respondent. Ms Mabaso confronted the respondent who denied that the money was paid into his trust account and Ms Mabaso then disclosed to the respondent that RAF has alerted her that the money has been deposited into his account. Finally, on 20 November 2014, the respondent advised Ms Mabaso that the entire amount of R170 657,40 had been appropriated towards his fees and disbursements. He however failed to provide a detailed ledger account, statements of account and invoices reflecting how the amount of R170 656,40 had been appropriated. The claim in respect of loss of earnings was adjudicated upon by the court on 5 February 2015 and RAF effected payment to the respondent on 11 July 2015, but still Ms Mabaso struggled to receive monies awarded to her by RAF.

[15] A lot of correspondence was sent to the respondent by another law firm, Fluxman Attorneys, in assistance of Ms Mabaso, which I do not deem necessary to refer to further details thereof. Ultimately Ms Mabaso lodged a complaint with the Law Society, which complaint was furnished to the respondent on 2 November 2015, thereby leading to the committee recommending an inspection into the respondent's accounting records and practice affairs. In the meantime, the respondent instituted civil proceedings against Ms Mabaso in an amount of R1 million for defamation on the basis that Ms Mabaso had laid a complaint with the Law Society and he therefore wanted to protect the integrity and reputation of his firm. The respondent alleged that Ms Mabaso's complaint and his defamation action were "inextricably interwoven" and that the matter was therefore sub iudice.

[16] The Law Society instructed a chartered accountant and auditor, Mr Faris, to conduct an inspection of the respondent's accounting records and practice affairs following the recommendations of the Committee. In a letter dated 8 October 2016 the respondent informed the Law Society that its inspector cannot inspect his accounting records as the matter between himself and Ms Mabaso is sub iudice. He requested the Law Society to keep the complaint in abeyance pending either an amicable solution to the matter or the determination of the dispute by the high court.

[17] The Law Society advised the respondent that it did not consider his claim against Ms Mabaso for defamation, related to his accounting records and should have his books inspected. In his reply, the respondent stated that the Law Society would not be allowed to conduct an inspection of his accounting records as it is premature to do that, and that the Law Society should approach the court on application to compel him to submit to such an inspection and added that such application would be opposed.

[18] It is contended by the applicant that the respondent has contravened numerous provisions of the Act and the Law Society's Rules ("the Rules") which can be summarised as follows:

18.1 Section 78 of the Act and the provisions of Rule 69.3 for misappropriation of the trust funds and Trust deficits which existed in the bookkeeping

18.2 Rule 89.25 and section 78(5) for failure to co-operate with and grant the Law Society the opportunity to inspect the accounting records and practice affairs.

18.3 Rule 68.7 (and Rule 35.11of the new Rules) for failure to account to a client

18.4 Rule 68.8 read with Rule 89.7 (and Rule 35.12of the new Rules) for the delayed payment of trust funds

18.5 Rule 68.7.1 for failure to disclose to a client the receipt of the proceeds of the client's third-party claim from RAF

18.6 Rule 40.3 for failure to honour an undertaking to a client

18.7 Rule 89.23 for failure to furnish an explanation for the delay in paying trust funds to a client after having been requested to do so

18.8 Rules 68.6 and 69.6 for appropriating an amount of R170 657,40 awarded to a client for his own fees and disbursement for which he admitted thereto.

18.9 Rules 69.3 and 69.5 for failure to keep trust funds available in his trust banking account at all times; and

18.10 Rule 89.11for unprofessional or dishonourable or unworthy conduct.

[19] The applicant contends that Ms Mabaso's funds were not available on trust between 25 November 2015 and 25 April 2016. A certificate of balance obtained from the respondent's bank for the period of July 2015 to May 2016 evidences a trust deficit at month ends for the period November 2015 to April 2016. The applicant alleges that there were no sufficient funds available in the respondent's trust banking account to cover the firm's liability to its trust creditors. The applicant further contends that the respondent's payment to Ms Mabaso from his trust banking account on 13 October 2016 could not have been effected using the funds held on behalf of Ms Mabaso but were funds held on behalf of another or other trust creditors.

[20] The respondent has not advanced any argument or reasons to court as to why his name should not be struck from the roll of attorneys. The fact that the respondent has instituted a claim for defamation against Ms Mabaso does not bar this court from making a determination on whether the respondent is a fit and proper person to continue to practice as an attorney or that his name should be struck from the roll of attorneys. I can find no nexus between the defamation matter and the application before this court. In my view, the defamation matter is sub iudice between the respondent and Ms Mabaso and has no bearing or relevance to the matter before this court, as it goes towards protection, integrity, and reputation of the respondent's firm.

[21] Failure to keep proper books of account is a serious contravention and renders an attorney liable to be struck off the roll of attorneys or liable to suspension. The courts have repeatedly warned practitioners of the seriousness of such contravention[1]. It can therefore be appreciated that the duty of an attorney to account, is more than just being important. It is fundamental to the honour of being a lawyer[2].

[22] The conduct expected of an attorney was succinctly summarised by Eksteen JA in Vassen v law Society of the Cape of Good Hope[3] as follows:

"It must be borne in mind that the profession of an attorney, as of any other officer of the Court, is an honourable profession which demands complete honesty, reliability and integrity from its members; and it is the duty of the respondent Society to ensure, asfar as it is able, that its members measure up to the high standards demanded of them".

[23] The respondent continuously refused to co-operate with the applicant's investigations into the complaints against him. He has shown a total disregard for the investigation and this attitude continued even up to the date of trial. This shows dishonesty. I am of the view that this displayed lack of integrity on his part.

[24] It is the appellant's contention that the deficits on the respondent's trust bank account were minimum trust deficits, accounting for only one trust creditor (Ms Mabaso). The respondent admitted having appropriated the full amount of R170 657,40 belonging to his client. Mr Groome on behalf of the applicant argued extensively in his heads of arguments and submitted that the court should accept that the payment of R123 800,33 by the respondent in respect of the RAF matter in favour of Ms Mabaso could only come from the second payment received from RAF on 11 July 2015 in the amount of R206 300,60.

[25] In Vassen v Law Society of the Cape of Good Hope[4] the court stated that:

"A client who entrusts his affairs to an attorney must be able to rest assured that that attorney is an honourable man who can be trusted to manage his affairs meticulously and honestly. When money is entrusted to an attorney or when money comes to an attorney to be held in trust, the general public is entitled to expect that that money will not be used for any other purpose than that for which it is being held, and that it will be available to be paid to the persons on whose behalf it is held whenever it is required.  Here once again the respondent Society has been created to ensure that the reputation of this honourable profession is upheld by all its members so that all members of the public may continue to have every confidence and trust in the profession as a whole".

[26] In Hepple v Law Society of the Northern Provinces[5] the court stated that:

"It follows therefore that where allegations and evidence are presented against an attorney, they cannot be met with mere denials by the attorney concerned. If allegations are made by the law society and underlying documents are provided which form the basis of the allegations, they cannot simply be brushed aside; the attorneys are expected to respond meaningfully to them and to furnish a pro per explanation of the financial discrepancies as their failure to do so may count against them".

[27] Furthermore, the delay in paying trust creditors, is an impeachable conduct contrary to the rules of practice of an attorney. The fact that the respondent has prevented an investigation of his accounting records, is an aggravating factor which supports the contention by the applicant that there was a trust deficit in his accounting records. This constitutes a breach of the most fundamental rule, that the total amount in an attorney's trust account must always be sufficient to cover the amounts owing to trust creditors. In my view, the conduct of the respondent was dishonourable, unprofessional, and unworthy of a practitioner.

[28] Applications for the striking off an attorney's name from the roll of attorney's are not ordinary civil proceedings. They are proceedings of a disciplinary nature and are sui generis [6] being no more than a request by the applicant as custom morum of the profession for the court to use its disciplinary powers over the officer who has misconducted himself/herself and impose an appropriate sanction within the court's discretion ranging from striking-off, if the court finds that the individual is no longer a fit and proper person to remain on the roll of attorneys, or suspend him/her from the profession for a particular duration.

[29] In Solomon v Law Society of the Cape of Good Hope[7] the following was said regarding the nature of disciplinary proceedings:

"Now in these proceedings the Law Society claims nothing for itself. . . It merely brings the attorney before the Court by virtue of a statutory right, informs the Court what the attorney has done and asks the Court to exercise its disciplinary powers over him. . . The Law Society protects the interests of the public in its dealings with attorneys. It does not institute any action or civil suit against the attorney. It merely submits to the Court facts which it contends constitutes unprofessional conduct and then leaves the Court to determine how it will deal with this officer".

See also: Hassim v Incorporated Law Society of Natal[8]

[30] Our courts have always been consistent in requiring that attorneys should earn the trust of the public and that they should exercise their duties with honesty and dignity[9]. An attorney is a member of a learned, respected, and honourable profession and by entering it, pledges himself with total and unquestionable integrity to society at large, to the courts and to the profession. The law expects from a legal practitioner uberrima lides - the highest possible degree of good faith - in his dealings with his client, the public and the court, which implies that at all times his submissions and representations to the client must be accurate, honest and frank.

[31] The image and standing of the profession are judged by the conduct and reputation of all its members, and to maintain this confidence and trust, all members of the profession must exhibit the qualities required of members of the profession at all times.  Every attorney must scrupulously observe and comply with the provisions of the Act, the Code of Conduct and Rules promulgated thereunder. For the sake of the public and of this noble profession, it is of utmost importance for the court to enforce on all legal practitioners, the high standard of duty which rests upon them and demand the great integrity which is expected of them.

[32] In Hepple v Law Society of the Northern Provinces supra the court stated that:

"In considering whether a case has been made out against an attorney sought to be struck from the roll it is necessary to bear in mind that the evidence presented by the Law Society is not to be treated as though one was dealing with 'a criminal case' or an ordinary civil case'. The proceedings in applications to strike the name of attorneys from the roll are not ordinary civil proceedings. They are proceedings of a disciplinary nature and are sui generis".

[33] In Nyembezi v the Law Society Natal [10]the court stated that:

"When a Law Society applies for an attorney to be struck off the roll, it places before the court facts which, in its submission, show that the respondent is no longer a fit and proper person to continue in practice as an attorney..."

[34] When the Law Society brings an application in terms of section 22(1)(d) of the Act, it performs a public duty.[11] In terms of the three-stage enquiry as set out by the Supreme Court of Appeal in Botha v Law Society of the Northern Provinces [12], the court will firstly decide whether the alleged offending conduct has been established on a preponderance of probabilities. Secondly, the court must consider whether the person against whom the application is brought is a fit and proper person to continue to practise as an attorney. Thirdly, 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 would suffice.

[35] In deciding which course to follow, the two considerations are: - to discipline and punish errant attorneys and to protect the public, particularly where trust funds are involved [13].

[36] The Supreme Court of Appeal stated in Malan v The Law Society of the Northern Provinces [14] that:

"Logic also dictates that if a court finds that someone is not a fit and proper person to continue to practice as an attorney, then such person has to be removed from the roll".

(The same sentiments where expressed in Law Society of the Free State v Molapo[15])

[37] As indicated above, the respondent has not placed any evidence before this court to challenge all the allegations levelled against him or to advance the reasons why his name should not be struck from the roll of attorney. These allegations remain undisputed and in the absence of any evidence to the contrary, I am bound to accept those averments as true and correct.

[38] Based on the fact that the respondent admitted having appropriated the funds belonging to his client; as well his continued refusal to allow the auditors to inspect his accounting records; his mismanagement of the trust funds; and his failure to account to his client, I am satisfied that the applicant has made a proper case for the removal of the respondent's name from the roll of attorneys. The respondent's conduct constitutes a material deviation from the standards of professional conduct which is expected of an officer of the court. It is also my view that the offending conduct of the respondent has been established, and the complaint lodged against him has indeed been established on the preponderance of probabilities.

[39] An attorney who cannot properly account to his client poses a serious threat to the public and the legal profession. Failure by an attorney to account to a client is, on its own, a profoundly serious transgression under section 78(1) of the Act. On the other hand, the misconduct committed by the respondent in respect of Ms Mabaso cannot be reconciled with the noble objectives, norms, and standards which the applicant strives to cultivate and uphold. In my view, the respondent behaved in a manner which degraded the prestige, the status, and the image of the profession.

[40] The contraventions of the respondent create a bleak image of his conduct as an attorney. His unethical acts of misconduct portray him as a lawyer unworthy to remain in the ranks of this honourable profession. It is essential for the prestige, status and dignity of the profession that practitioners should not be identified with any form of dishonesty or dishonourable conduct in the eyes of the public at large, the court and those concerned with the administration of justice [16] I have thoroughly weighed up the respondent's misconduct against the conduct expected of an ordinary attorney and I found the respondent to be comparatively wanting.

[41] Having considered the totality of the facts and circumstances of this case, we have come to the conclusion that the respondent is indeed no longer a fit and proper person to continue practicing as an attorney and that the removal of the respondent's name from the roll of practising attorneys, is a fitting and appropriate punishment for him.

[42] In the premises, the following order is granted:

1. The name of the respondent, Mr Paulus Lepekola Samuels is hereby struck off the roll of attorneys, notaries, and conveyancers of this court.

2. The draft order attached hereto and marked "X" is incorporated in the order .

3. The respondent is ordered to pay costs in the scale as between attorney and client.

P. D. PHAHLANE

ACTING JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

I agree,

S. N. I MOKOSE

JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

For the Applicant: Mr L. GROOME

Instructed by: ROOTH & WESSELS INC

For the Respondent: NO APPEARANCE

Instructed by: P.L SAMUELS ATTORNEYS

AND TO: RACCANELO ATTORNEYS (FOR RESPONDENT)

THE ITALIAN CLUB, BEDFORDVIEW

Date of Hearing: 30 April 2020

Date of Judgment: 17 June 2020

THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

Case number: 12992/2017

PRETORIA THIS 30th DAY OF APRIL 2020

BEFORE THE HONOURABLE JUSTICE MOKOSE

BEFORE THE HONOURABLE JUSTICE PHAHLANE

In the matter between:

THE LAW SOCIETY OF THE NORTHERN PROVINCES                  Applicant

and

PAULUS LEPEKOLA SAMUELS                                                       Respondent

DRAFT ORDER

Having perused the papers filed of record and the written submissions by counsel for the applicant and respondent:

IT IS ORDERED THAT

1.1 That the name of PAULUS LEPEKOLA SAMUELS (Respondent) be struck from the roll of attorneys of this Honourable Court.

1.2 That respondent immediately surrenders and delivers his certificate of enrolment as an attorney to the Registrar of this Honourable Court.

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

1.4 That the respondent be prohibited from handling or operating on his trust accounts as detailed in paragraph 1.5 hereof.

1.5 That Johan van Staden, the Head: Risk Compliance of applicant or any person nominated by him, in his capacity as such, remains a suitable person to act as curator bonis (curator) to administer and control the trust account(s) 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(s) as attorney and including, also, the separate banking accounts opened and kept by respondent at a bank in the Republic of South Africa in terms of section 78(1) of Act No 53 of 1979 and/or any separate savings or interest-bearing accounts as contemplated by section 78(2) and/or section 78 (2A) of Act No. 53 of 1979, in which monies from such trust banking accounts have been invested  by virtue of the 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:

1.5.1 immediately to take possession of the respondent's accounting records, records, files and documents as referred to in paragraph 1.6 and subject to the approval of the board of control of the Legal Practitioners' Fidelity Fund (hereinafter referred to as the fund) to sign all forms and generally to operate upon the trust account(s), but only to such extent and for such purpose as may be necessary to bring to completion current transactions in which the respondent was acting at the date if this order;

1.5.2 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 account(s) and/or against the respondent in respect of monies held, received and/or invested by the respondent in terms of section 78(1) and/or section 78(2) and/or section 78(2A) of Act No 53 of 1979 (hereinafter referred to as trust monies), to take any legal proceedings which may be necessary for the recovery of money which may be due to such persons in respect of incomplete transactions, if any, in which the respondent was and may still have been concerned and to receive such monies and to pay the same to the credit of the trust account(s);

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

1.5.4 to call upon such trust creditors to furnish such proof, information and/or affidavits as he may require to enable him, acting in consultation with, and subject to the requirements of, the board of control of the fund, to determine whether any such trust creditor has a claim in respect of monies in the trust account(s) of the respondent and, if so, the amount of such claim;

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

1.5.6 having determined the amounts which he considers are lawfully due to trust creditors, to pay such claims in full but subject always to the approval of the board of control of the fund;

1.5.7 in the event of there being any surplus in the trust account(s) of the respondent after payment of the admitted claims of all trust creditors in full, to utilise such surplus to settle or reduce (as the case may be), firstly, any claim of the fund in terms of section 78(3) of Act No 53 of 1979 in respect of any interest therein referred to and, secondly, without prejudice to the rights of the creditors of the respondent, the costs, fees and expenses referred to in paragraph 1.10 of this order, or such portion thereof as has not already been separately paid by the respondent to applicant, and, if there is any balance left after payment in full of all such claims, costs, fees and expenses, to pay such balance, subject to the approval of the board of control of the fund, to the respondent, if he is solvent, or, if respondent is insolvent, to the trustee(s) of the respondent’s insolvent estate;

1.5.8 in the event of there being insufficient trust monies in the trust banking account(s) of the respondent, in accordance with the available documentation and information, to pay in full the claims of trust creditors who have lodged claims for repayment and whose claims have been approved, to distribute the credit balance(s) which may be available in the trust banking account(s) amongst the trust creditors alternatively to pay the balance to the Attorneys Fidelity Fund;

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

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

1.6 That the respondent immediately delivers his accounting records, records, files and documents containing particulars and information relating to:

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

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

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

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

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

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

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

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

1.6.9 the respondent’s practice as an attorney of this Honerable Court, to the curator appointed in terms of paragraph 1.5 hereof provided that, as far as such accounting records, records, files and documents are concerned, the respondent shall be entitled to have reasonable access to them but always subject to the supervision of such curator or his nominee.

1.7 That should the respondent fail to comply with the provisions of the preceding paragraph of this order on service thereof upon him or after a return by the person entrusted with the service thereof that he has been unable to effect service thereof on the first 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.

1.8 That the curator shall be entitled to:

1.8.1 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;

1.8.2 require from the persons referred to in paragraph 1.8.1 to provide any such documentation or information which he may consider relevant in respect of a claim or possible or anticipated claim, against him and/or respondent and/or respondent's clients and/or fund in respect of money and/or other property entrusted to the respondent provided that any person entitled thereto shall be granted reasonable access thereto and shall be permitted to make copies thereof;

1.8.3 publish this order or an abridged version thereof in any newspaper he considers appropriate;

1.8.4 wind-up of the respondent's practice.

1.9 That respondent be and is hereby removed from office as:

1.9.1 executor of any estate of which respondent has been appointed 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;

1.9.2 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;

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

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

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

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

1.9.7 administator appointed in terms of Section 74 of the Magistrates Court Act, No 32 of 1944.

1.10 That respondent be and is hereby directed:

1.10.1 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;

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

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

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

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

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

1.11 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, shall 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 him (respondent) in respect of his former practice, and should he fail to do so, he shall not be entitled to recover such fees and disbursements from the curator without prejudice, however, to such rights (if any) as he may have against the trust creditor(s) concerned for payment or recovery thereof.

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

BY ORDER OF COURT

REGISTRAR

AITORNEYS FOR APPLICANT: RW Attorneys Inc

COUNSEL FOR APPLICANT: Mr L. Groome

RW Attorneys c. Mr L. Groome

ATTORNEYS FOR RESPONDENT: Rontgen & Rontgen Inc.

COUNSEL FOR REPONDENT:

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