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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

(1)    REPORTABLE: NO

(2)    OF INTEREST TO OTHER JUDGES: YES

(3)    REVISED: YES / NO

26 NOVEMBER 2020 

CASE NO: 18445/2020

 

In the matter between:

 

SOUTH AFRICAN LEGAL PRACTICE COUNCIL                                         APPLICANT

And

 

RAYMOND EDWARD CHALOM                                                                     RESPONDENT

 

J U D G M E N T

 

MUDAU, J:

 

[1]          The applicant, the South African Legal Practice Council (“LPC”) seeks an order that Mr Raymond Edward Chalom (“the respondent”) be suspended from practising as an attorney of this court, on such terms and with such conditions as the court may deem appropriate. In the alternative, the application being that the name of the respondent be struck from the roll of attorneys.

[2]          The Attorneys Act 53 of 1979 was repealed by section 119 (1) of the Legal Practice Act 28 of 2014 (“the Act”) which came into effect on 1 November 2018 by Proclamation No. R31 of 2018, Government Gazette No 42003 of 29 October 2018.  Consequently, the Legal Practice Council was established with effect from 31 October 2018. Parallel to this development was the dissolution of the Provincial Law Societies. The Legal Practice Council was established in terms of section 4 of the Act as a body corporate with full legal capacity which exercises jurisdiction over all legal practitioners as contemplated in the Act.

[3]          In terms of section 40 (3) (a) (iv) read with section 44 (1) of the Act, an attorney may be struck from the roll or suspended from practice if he or she, in the discretion of the court, is not a fit and proper person to continue to practice as an attorney on a balance of probabilities. The section undoubtedly is intended to allow a court, in the exercise of its discretion, to strike off or suspend any attorney who is not a fit and proper person from the roll, i.e. one who has failed to display that degree of honesty, reliability and integrity expected of an attorney.

[4]          On the day that this application was argued, the respondent brought an application from the bar for the postponement of the matter pending a joinder application that involves action proceedings against the applicant and other defendants. It is trite that an application for a postponement is not there for the taking. An applicant for a postponement in essence, seeks an indulgence.[1] The legal principles pertaining to an application for a postponement are trite. The court has a discretion as to whether an application for a postponement should be granted or refused. In Lekolwane v Minister of Justice and Constitutional Development[2] , the CC laid the test thus: an applicant seeking postponement must ordinarily show good cause for the postponement. The granting or refusal of postponement is therefore in the discretion of the court. In exercising that discretion, a court takes a number of considerations into account, which include: whether there is prejudice to any of the parties, whether the application is opposed and the broader public interest. All these factors, to the extent appropriate, together with the prospects of success on the merits of the matter, will be weighed by the court to determine whether it is in the interests of justice to grant the application. However, that discretion must be exercised in a judicial manner. It should not be exercised capriciously or upon any wrong principle, but for substantial reasons.

[5]          In addition, an application for postponement must be made timeously, as soon as the applicant knows the circumstances, which might justify such an application. An application for postponement must always be bona fide and must not be used as a tactical manoeuvre for obtaining an advantage to which the applicant is not legitimately entitled. In terms of Rule 6 (14) of the Uniform Rules, the provisions of Rule 10 are applicable with regard to applications or motion proceedings.

[6]          This court is not seized with the joinder application and need not make pronouncements on it finally. However, the prospects of the respondent succeeding in his joinder application are very slim. In this instance, the procedures are fundamentally different in that the proposed joinder involves action proceedings. Under Rule 10 (1), the right to relief of persons proposing to join as plaintiffs depends upon the determination of substantially the same question of law or fact, which, if separate actions were instituted, would arise on such action.

[7]          In the instant case, the application was not supported by a substantive application under oath to justify the relief sought. The joinder application, initially set down for 9 November 2020 in Johannesburg was not pursued as per a letter submitted to the court that the applicant’s counsel was at court on the day. Consequently, the application for postponement was dismissed. The respondent followed up with an application from the bar for leave to appeal the above ruling.  He contended that it would “be crazy” of this court, and a denial of his constitutional right if leave to appeal to the Supreme Court of Appeal (SCA) was denied. The applicable legal principles regarding leave to appeal are trite. It terms of section 17 of the Superior Courts Act 10 of 2013:

(1)       Leave to appeal may only be given where the judge or judges concerned are of the opinion that-

(a)       (i) the appeal would have a reasonable prospect of success; or

(ii) there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration;

(b)       the decision sought on appeal does not fall within the ambit of section 16 (2) (a); and

(c)        where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties.

[8]          Regarding the section 17 (1) (a) (i) test, Bertelsmann J in Mont Chevaux Trust (IT2012/28) v Tina Goosen & 18 Others[3]  outlined how the Superior Courts Act had raised the threshold for granting leave to appeal —

"It is clear that the threshold for granting leave to appeal against a judgment of a High Court has been raised in the new Act. The former test whether leave to appeal should be granted was a reasonable prospect that another court might come to a different conclusion, see Van Heerden v Cronwright & Others 1985 (2) SA 342 (T) at 343H. The use of the word "would" in the new statute indicates a measure of certainty that another court will differ from the court whose judgment is sought to be appealed against”.[4]

In the instant case, the application for leave to appeal the court order is clearly without merit. The respondent is yet to succeed regarding the merits. The order given is not final in effect on the substantive issues regarding the two matters. After proper consideration of the application for leave to appeal made from the bar, this too, was dismissed. Both parties stood by their heads of argument filed on record without any further oral submissions regarding the merits. It is to the merits of the application that I now turn.

 

BACKGROUND

[9]          The respondent was admitted as an attorney of this Court in 1976. He practises for his own account as a single practitioner under the name and style ‘R E Chalom Attorney’ ("the firm").  Mrs Hlaleleni Kathleen Matolo-Dlepu (“Mrs Dlepu”), the Chairperson of the LPC was elected as such in terms of section 9 of the Act. Mrs Dlepu was authorised to bring this application and to depose to an affidavit on behalf of the LPC by virtue of a resolution of the LPC dated 13 February 2020.

 

THE LAW

[10]       The LPC is empowered under section 40 (3) (a) (iv) read with section 44 (1) of the Act, to launch an application for the striking off the roll or suspension from practice of a legal practitioner. If the court is satisfied that the legal practitioner is not a fit and proper person to continue to practise, the provisions of the Act “do not derogate in any way from the power of the High Court to adjudicate upon and make orders in respect of matters concerning the conduct of a legal practitioner, candidate legal practitioner or a juristic entity”.

[11]       Section 116 (2) of the Act provides that any proceedings in respect of the suspension of any person from practice as an advocate, attorney, conveyancer or notary which have been instituted in terms of any law repealed by the Act and, which have not been concluded at the date of the commencement of the Act, must be continued and concluded as if that law had not been repealed. For this purpose, a reference in the provisions relating to such suspension or removal to the Law Society must be construed as a reference to the LPC.

[12]       Section 119 (2) (b) of the LPA further provides that any rule, code, notice, order, instruction, prohibition, authorisation, permission, consent, exemption, certificate or document promulgated, issued, given or granted and any other steps taken in terms of any such law immediately before the date referred to in section 120 (4) [1 November 2018] and having the force of law, remain in force, except in so far as it is inconsistent with any of the provisions of the Act, until amended or revoked by the competent authority under the provisions of the Act.

[13]       In terms of section 119 (3) of the Act anything done in terms of a law repealed or amended by the Act remains valid if it is consistent with the Act until repealed or overridden; and is deemed to have been done in terms of the corresponding provisions of the Act. Concerning pending legal proceedings that have not been concluded for the suspension of any person or the removal of a name from the roll, such proceedings must be continued and concluded as if the law had not been repealed. Section 116 is all inclusive of all pending proceedings.

[14]       It is trite that an application of this nature constitutes a disciplinary inquiry by the court into the conduct of the practitioner concerned. These proceedings do not constitute ordinary civil proceedings but are in their nature sui generis[5] with the LPC fulfilling the role of amicus curiae.[6] Accordingly, the LPC is not an ordinary litigant in this application. As custos morum of the profession, the LPC places the facts and its views for this court to take appropriate action in the exercise of its discretion using its disciplinary powers.[7] Significantly, the court’s power is inherent in nature over and above the provisions of the Act.[8]

[15]       In considering the evidence before it, the court is not bound by the views of the LPC. However, the LPC is not an ordinary litigant. It brings the matter to court in its capacity as both the statutory custos morum of the legal profession, those practising at the side bar, and protector of the public in their dealings with that profession. Due weight should accordingly be given to its views.[9]

[16]       In exercising its discretion, the court embarks upon a three-stage inquiry. The first inquiry is for the court to decide whether the alleged offending conduct has been established on a preponderance of probabilities. This is a factual enquiry. Once the court is satisfied that the offending conduct has been established, the second inquiry is whether the practitioner concerned is a fit and proper person to continue to practise. This inquiry entails a value judgment, which involves the weighing up of the conduct complained of against the conduct expected of an attorney. If the court holds the view that, the practitioner is not a fit and proper person to practise as an attorney, the third inquiry is whether in all the circumstances, the practitioner in question is to be removed from the roll of attorneys or whether an order suspending him from practice for a specified period will suffice. This will depend on factors such as the nature of the conduct complained of, the extent to which it reflects upon the person's character or shows him to be unworthy to remain in the ranks of an honourable profession, the likelihood or otherwise of a repetition of such conduct and the need to protect the public. Ultimately, this is a question of degree. In deciding whether an attorney ought to be removed from the roll or suspended from practice, the court is not primarily imposing a penalty. The main consideration is the protection of the public.

[17]       A legal practitioner is expected to scrupulously observe and comply with the provisions of the Act, the Rules promulgated thereunder and the Code of Conduct. The respondent is a member of a learned, respected and honourable profession and by entering, upon taking the oath, he pledged himself with total and unquestionable integrity to society, to the courts and to the profession.

[18]       The courts and the LPC have a duty to act where a legal practitioner's conduct falls short of what is expected and to curb the erosion of values in the profession. The protection of the public goes hand in hand with a court's obligation to protect the integrity of the courts and the legal profession. Public confidence in the legal profession and in the courts is undoubtedly undermined when the strict requirements for membership to the profession are weakened.

 

THE FACTUAL ALLEGATIONS

[19]       The LPC’s application is founded upon the following facts.  The respondent failed to timeously submit his auditor's report for the period ending 29 February 2016 to the erstwhile Law Society. The respondent belatedly sought exemption from doing so and this was granted. The respondent failed to submit his Rule 70 auditor's report for the financial period ending 29 February 2016 to the Law Society/LPC. This report had to be submitted to the Law Society/LPC on or before 31 August 2016. By failing to submit his Rule 70, auditor's report to the Law Society/LPC the respondent contravened the provisions of Rule 70. According to the provisions of Rule 89.11, the respondent made himself guilty of unprofessional, dishonourable or unworthy conduct by contravening Rule 70. The respondent eventually submitted an application to the Law Society/LPC for exemption from submitting his said auditor's report due to limited activity on his trust banking account. He only submitted the application for exemption on 8 September 2016, subsequent to 31 August 2016 on which date the report had to be submitted.

[20]       The respondent has since failed to submit his annual auditor’s reports to the Law Society/LPC for the 2017, 2018 and 2019 periods. The annual auditor's report is intended to satisfy the Law Society/LPC that, prima facie, a practitioner has kept proper accounting records and that trust funds entrusted to the practitioner are handled and administered properly. Generally, a fidelity fund certificate is issued on the strength of an unqualified audit report. The failure to submit an unqualified auditor's report disentitles a practitioner from being issued with a fidelity fund certificate. It is alleged that the respondent also practiced without fidelity fund certificates during a portion of 1997 and during the entire 1999.

[21]       On the LPC’s version, a fidelity fund certificate serves an important function. Its purpose is to ensure the protection of the public from pecuniary loss because of theft of trust funds committed by a practising legal practitioner or persons in his or her employ. It is in essence, a license for trust account practitioners to practise for their own account. A fidelity fund certificate is valid until 31 December of the year in which it is issued.

[22]       Because of the respondent's failure to submit his auditor's reports for the financial periods ending 28 February 2017, 28 February 2018 and 28 February 2019 to the Law Society/LPC, he was not issued with fidelity fund certificates for the years 2018, 2019 and 2020. The respondent failed to submit his auditor's report for the period ending 28 February 2019 to the LPC. This report had to be submitted to the LPC on or before 31 August 2019. By failing to submit his last mentioned auditor's report to the LPC, the respondent thus contravened the provisions of; inter alia, Rules 54.20 (appointment of an auditor), 54.22 (allowing access to an auditor to its records), 54.23 (furnishing auditor’s report), and 54.28 (to report the gross interest earned and the gross charges levied in respect of trust accounts) of the LPC Rules in that regard. The respondent's failure to comply with the provisions of Rule 54 constitutes misconduct in terms of Rule 57.1 of the LPC Rules. He nevertheless continued practising as an attorney without fidelity fund certificates as from 1 January 2017 and he is currently still practising as such.

[23]       The continued practice of such practitioner without being in possession of a fidelity fund certificate is contrary to the peremptory terms of the Act. In this regard section 84 (1) of the Act provides as follows:

‘Every attorney or any advocate referred to in section 34(2)(b), other than a legal practitioner in the full-time employ of the South African Human Rights Commission or the State as a state attorney or state advocate and who practises or is deemed to practise— (a) for his or her own account either alone or in partnership; or (b) as a director of a practice which is a juristic entity, must be in possession of a Fidelity Fund certificate. (My underlining)

[24]       In terms of section 93 (8) of the Act, “any person who contravenes sections 84(1) or (2) or section 34, in rendering legal services— (a) commits an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding two years or to both such fine and imprisonment”. The position was the same under sections 44(1) and 83(10) of the erstwhile Attorneys' Act.

[25]       It is alleged that the respondent failed to pay his membership fees (subscriptions) for the years 2016, 2017, 2018, 2019 and 2020 to the Law Society/LPC. A total amount of R12 817.00 of the respondent's membership fees are still outstanding. It is alleged that the respondent has consistently treated the Law Society/LPC dismissively, with contempt and is not prepared to submit to the LPC’s regulation and supervision. Rule 104 of the former Law Society's Rules provided:

‘Annual subscription and other charges payable to the society

104.1 Each member shall pay to the society an annual subscription and such fees, levies or other charges at such time and at such amounts as may from time to time be fixed by the council with the approval of the society given at a general or special meeting in terms of section 60 (2) the Act ( Attorneys Act)’.

[26]       The failure by the respondent to comply with the provisions of Rule 104 amounted to unprofessional, dishonourable or unworthy conduct in terms of Rule 89.11 of the former Law Society's Rules.

[27]       Rule 54.29 of the LPC Rules provides that in order to qualify for the issue of a fidelity fund certificate, a practitioner must ensure that an unqualified audit or inspector's report is issued in respect of any firm or firms of which he is or was a partner or director or sole practitioner during the financial period under review and is delivered timeously to the Council. The respondent's auditor's report for the period ending 29 February 2016 had to be submitted to the Law Society/LPC in terms of Rule 70 of the Law Society's former Rules.

[28]       The LPC alleges that the erstwhile Law Society addressed a letter to the respondent regarding his 2017 auditor's report. The respondent did not respond to this letter and was, in turn, directed to appear before a disciplinary committee. The respondent's failure to reply to the Law Society /LPC’s correspondence and his failure to attend to the Law Society/LPC’s requests for compliance with its lawful requirements constitute a contravention of Rules 10.1, 10.2 and 10.3 of the Code of Conduct (Rules 47.1, 47.2 and 47.3 of the former Rules for the Attorneys’ Profession). The respondent did not appear before the disciplinary committee either on 5 December 2017.

[29]       The respondent asserts that he did not receive this correspondence. He alleges that it was sent to an incorrect address. According to the LPC, the correspondence was sent to multiple addresses. However, the respondent's allegations do not indicate which address is incorrect, or when his particulars changed from those provided by him to the Law Society. For reasons that will become apparent in this judgment, nothing turns on this aspect. The respondent failed to submit his auditor's report for the period ending 28 February 2019 to the LPC. This report had to be submitted to the LPC on or before 31 August 2019.

[30]       On 1 March 2018, the Law Society addressed a further letter to the respondent regarding his failure to attend the previous disciplinary proceedings, his failure to submit his 2017 auditor's report, and directing him to appear before a further disciplinary committee on 17 April 2018. This correspondence resulted in the respondent issuing an urgent application out of the Johannesburg High Court on 12 April 2018, in which he sought any interim interdict prohibiting the Law Society from conducting the intended disciplinary hearing or any other disciplinary procedure.

[31]       The Law Society's letter of 1 March 2018 also resulted in the respondent issuing summons out of the Gauteng Local Division, Johannesburg on 7 May 2018, in which he seeks various relief against the Law Society, including a final interdict prohibiting any disciplinary procedures being conducted against him, that he be released from membership to the Law Society, and that he be awarded R25 million in damages for alleged defamation.

[32]       The respondent brought an application against the former Law Society on an urgent basis during April 2018, under case number 14468/2018. The relief which the applicant sought on an urgent basis was twofold, namely:

[33.1]  an interim interdict prohibiting the Law Society from proceeding with its disciplinary enquiry, which was scheduled for 17 April 2018; and

[33.2]  an interim interdict prohibiting the Law Society from conducting any disciplinary enquiries against him. In his founding affidavit, the respondent made several allegations, inter alia, that the Law Society is displaying fraudulent behaviour; the Law Society's conduct is reminiscent of the "Apartheid days; the Law Society previously struck unwanted black attorneys from the roll; the Law Society shows disrespect for the Bill of Rights and has no respect for the Constitution; the Law Society is an "apartheid disgrace; the Law Society is involved in fraud and corruption and that the Rules for the attorneys’ profession are invalid and unconstitutional.

[33]       The respondent failed to prosecute the abovementioned application. The LPC filed its heads of argument and brought an application to compel the respondent to file his heads of argument in order to facilitate the enrolment of the application. The applicant opposed the LPC's application to compel vigorously but the Honourable Unterhalter J granted it. The applicant then applied for leave to appeal Unterhalter J's order, the Supreme Court of Appeal and the Constitutional Court respectively. The applications for leave to appeal and a further application by the respondent to the Supreme Court of Appeal in terms of Section 17(2) (f) also failed. In his application to the SCA for leave to appeal, he alleged that the findings of Unterhalter J are meaningless and not binding on anyone. Furthermore, that Unterhalter J is not independent, but biased and imposes his views on others.

[34]       In the affidavit in support for direct access to the Constitutional Court, the respondent averred that “the Judge in the court a quo (Unterhalter J) relied upon outside information not in the papers before him and irrelevant to the issues, to grant the false compelling order of the 6th May 2019 which is the order that is being appealed”. The respondent brought an application for reconsideration of his last mentioned application in terms of Section 17(2) (f) of the Superior Courts Act. In his founding affidavit, he alleged that the LPC is in its nature discriminatory against independent legal practitioners; Mrs Dlepu committed perjury, concealed facts and distorted statements. After the respondent's application to the Supreme Court of Appeal in terms of section 17(2) (f) of the Superior Courts Act had been dismissed, he approached the Constitutional Court. He made the following allegations in his founding affidavit: that the LPC’s behaviour is diabolical and constitutes intentional misdirection, and the misdirection constitutes fraud, perjury and corruption; the LPC is an unconstitutional body and the Legal Practice Act is an unconstitutional Act.

[35]       Mrs Dlepu deposed to a further supplementary founding affidavit. In this affidavit, she avers that during February 2020 the respondent brought an application for leave to appeal to the Constitutional Court for the  setting aside of the taxation of the LPC’s legal costs, which costs were awarded to it by two orders of the Supreme Court of Appeal. The respondent had also applied for relief to the effect that the above-mentioned taxations be declared unconstitutional, illegal and fraudulent. In his founding papers to the Constitutional Court, the respondent alleged inter alia, that ‘the Council’s attorneys arranged and organised fraudulent taxations’, that Mrs Dlepu’s behaviour was “laughable and unethical, and furthermore a true disgrace to the legal system… as part of a wider crime syndicate”. In addition, that ‘there is no justice in South Africa and there is no equality before the law’. On 10 February 2020, the respondent tweeted that ’the current judiciary is the laughing stock of SA’. The Constitutional Court has since dismissed the respondent’s application to approach it directly as there were no prospects for success on appeal.

[36]       The respondent has since also issued summons against the LPC, its Chairperson and the Minister of Justice, in which he seeks various declaratory orders relating to the constitutionality of the Legal Practice Act, the Superior Courts Act, and ‘not less than R10 million in damages’, which is of course his right. It is this action that the respondent seeks to consolidate with the present application.

TEREZAKIS COMPLAINT

[37]       Mr CHS Terezakis (Terezakis) submitted a complaint against the respondent to the LPC on 11 September 2019. The respondent previously acted on behalf of Terezakis in divorce proceedings and several related matters. According to Terezakis, the respondent acted unethically and unprofessionally in several respects. The respondent allegedly failed to reply to Terezakis’ correspondence, failed to execute his instructions, withdrew as his attorney of record in all matters, failed to prepare an ante-nuptial contract correctly and properly and published or divulged privileged information concerning Terezakis.

[38]       According to the LPC, the respondent possibly made himself guilty of a conflict of interest as well as he previously also acted on behalf of Terezakis’ former spouse. The LPC referred the particulars of the complaint to the respondent on 20 September 2019 and requested him to comment thereon on or before 21 October 2019.

[39]       The respondent failed to reply to the LPC's abovementioned letter and to comment on the complaint. The LPC addressed a further letter to the respondent on 23 October 2019 and again requested his comments on the complaint. The LPC notified the respondent to submit his comments to it on or before 11 November 2019. This was ignored. The respondent's persistent failure to reply to the LPC's correspondence and to comment on a complaint submitted against him constitutes a contravention of Rules 10.1, 10.2 and 10.3 of the Code of Conduct, which is a misconduct in terms of Rule 13. It is common cause that the respondent's representation of Terezakis resulted in him, personally, issuing summons against Terezakis’ wife and her attorney (Wright). In these proceedings, the respondent claimed large sums of damages for defamation and loss of income allegedly arising from allegations made in affidavits flowing from the proceedings between Terezakis and his wife. The action was ultimately dismissed on 4 June 2015 by the Honourable Weiner J who took issue with the unprofessional manner in which the respondent and Wright conducted themselves in the proceedings.

NEWS ARTICLE DATED 21 FEBRUARY 2020

[40]       In a news article headed ‘SA JUDICIARY A HOTBED OF CORRUPTION, SAYS ATTORNEY’, published on various news platforms, including the Sunday Independent and Legal Brief, the contents of which are attributed to the respondent, part of it reads:

A Johannesburg lawyer says the South African judiciary is corrupt, with some judges collaborating with each other to rig court outcomes abuse cost orders for political purposes, tamper with evidence and cause files to disappear.

             Raymond Edward Chalom, who has been in the legal profession for almost 50 years says judges are appointed on the basis of friendship, trade-offs between lobby groups in the sector and affiliation to legal bodies rather than history, legal minds and experience.

Speaking to Sunday Independent on Friday, seven years after he wrote a letter to the UN Security Council complaining about "corruption in the South African Judiciary and Judicial Service Commission (JSC)”, the lawyer has also accused judges of abusing costs orders for purposes, especially against public protector advocate Busisiwe Mkhwebane.

In his letter to the UN Chalom accused some judges in the Durban and South Gauteng High Court of breaching Section 8 of the Constitution, which governs corrupt activities by judicial officers. He also accused the JSC a body which appoints judges and hears misconduct cases against them, of victimising him and blocking his application to become a High Court judge for speaking out against judicial corruption.

In his letter to the UN, Chalom gave as an sample a case he had litigated which was heard in the Durban and South Gauteng High Courts... He said he had applied for the second time for the position of judge in 2012, but the JSC rejected him. When he demanded the reasons the body "apparently decided to arrange for fraudulent litigation to be instituted against me to give me reasons why I could not be considered to be a judge".

Chalom says that instead of protecting him, the Law Society of South Africa now known as the Legal Practice Council has victimised him for opposing judicial corruption by orchestrating a fictitious misconduct complaint against him.”

The respondent is reported to have further stated that:

“"Cost orders are being abused. I am of the view they are being abused for political purposes. Thuli Madonsela was on the right side, so she became Queen. Mkhwebane is more perceptive about a deeper problem in society and she is being punished for it. That problem relates to access to justice, it relates to access by ordinary people to courts. That is necessary because if ordinary people don’t have access to courts, you get violence”. (My underlining)

[41]       On 10 October 2008, the respondent submitted a complaint against the Hon. Judge Makume to the Judicial Services Commission. This was pursuant to two unsuccessful High Court matters that he had instituted in his personal capacity adjudicated by Acting Judge Makume (as he then was). The complaint by the respondent was inter alia, that ‘the judge is a danger to innocent citizens’; ‘it is a travesty of justice to have the judge on the bench’; and that ‘the judge does not even qualify for the Small Claims Court’.

[42]       Though the current application is opposed, the material facts set out in the founding affidavit of the applicant are not in dispute. In his answering affidavit, filed four months late without a condonation application, the respondent is on the main, unapologetic. He referred the LPC “as the amoebas of society. They have no head, no spine and they live under rocks and in holes so they cannot be found and only a mouth with which they eat at the fabric of society for their own personal gain.” He makes it clear that he will never be associated with the LPC, which is in his view, an apartheid organization that is also an organ of state. He is of the view that the applicant’s conduct is unconstitutional. In his view, they (LPC) ‘use scare tactics to force you to give up your constitutional rights and they lie and deceive the courts continuously’. He is adamant that the Legal Practice Act is an unconstitutional Act of parliament and has no effect in law as it undermines the Constitution of the Republic by attempting to abolish democracy and replace it with an oligarchy. Therefore, according to him, the Act is unenforceable. He denounces Mrs Dlepu as the present chairperson of the LPC or that she is authorised to act on behalf of the LPC in deposing to the founding affidavit.

[43]       The respondent maintains that Mrs Dlepu is a liar and a perjurer. The LPC is an unconstitutional body, which is based on apartheid principles and structures, and he rejects it with contempt. He further claims the LPC has no support in society or in the legal profession in SA. He refuses to pay any fees to the LPC as envisaged in section 84 (1) of the Act and submits that the court should not force him to do so as it is unconstitutional. The respondent does not however deny his failure to submit his auditor's report for the period ending 28 February 2019 to the LPC and the other relevant periods. Neither does he deny a failure to pay membership fees between 2016 until 2020.

[44]       He takes issue with the fact that this application was launched in Pretoria. The instant application has the same issues as the action he has instituted in Johannesburg, which commenced long before the Pretoria litigation. He alleges, “[T]o split the action in two doubles the costs and they believe that Pretoria is a court more likely to find in their favour. All of this is unlawful, contrary to common and ordinary law and a disgrace to the legal profession in SA. A return to the activities of Apartheid, which are recognisable from their behaviour”. He rejects that this court has jurisdiction regarding this matter. He however agrees, “the court has a power to regulate the behaviour of all lawyers but this power is subject to the provisions of the constitution and the bill of rights, which are the supreme law of the land. If an attorney commits a crime of dishonesty, he must be prosecuted. I call for the prosecution of the deponent including for perjury”.

[45]       With regard to allegations about practicing without a Fidelity Fund Certificate (FFC), he alleges that, he offered to pay for 2017 and 2018 but they (LPC) did not respond. He says that he has a ‘FFC for 2019 but they have refused to issue it to me. Since then this matter has blown up and it is now useless to ask for my FFC. Note that there is nothing in the SA Constitution, which obliges an attorney to have a FFC. You can choose to practice your profession freely; that is what the constitution states’. In addition, he questions the necessity for a Fidelity Fund Certificate, which is in his view, ‘an apartheid concept which allows the government/ executive to control the legal profession. It is a return to apartheid which is a crime against humanity in SA law. There is no obligation on the governing law society to issue such certificates to practising attorneys and in this way, they can stop any attorney from practising by refusing to issue a FFC to him. It is laughable apartheid being re-instated… It is designed to make the LPC wealthy and to give it access to funds which are not otherwise being used…’

[46]       The respondent contends that section 84(1) of the Act is unconstitutional and does not permit “the free choice of the profession as directed by the constitution”. He accuses Mrs Dlepu for showing ‘no knowledge of constitutional law and the bill of rights. She is not fit to be the chairperson of a dog show.’ He alleges that the former rules of the then LSNP were unconstitutional, and accordingly reject this application.

[47]       Regarding the complaint by Mr Terezakis, he alleges that, ‘[T]he apartheid authorities, prior to 1994, trained groups of persons on how to lie with effect. Mr Terezakis is a trained apartheid liar. After 1994, he worked with Counsel, George Bizos SC, who instructed him to set me up. Now it appears he is colluding with the LPC (a government organ); this is his speciality.’ He alleges that the complaint is a criminal collusion and fraud.

 

[48]        As for the complaint regarding Makume J, he says that it was completely justified. He ‘knew of a certain senior black Judge outside of the legal system who sent me a message’. He decided not to continue with the complaint. However, on the common cause facts this complaint reached the JSC, which responded. With regard to the so-called “Weiner J issue”, as the respondent termed it, he is adamant that Weiner J colluded with D Pillay J of the Durban High Court to deny him access to court, ‘which is corruption and fraud’. Weiner J had concluded in the matter that the respondent was involved as a litigant that he and his opponent had acted unprofessionally. The judgment, which the respondent described as “feeble”, finalised several years ago, has not been appealed against.

[49]       As for the allegations in the newspaper article referred to above, he states that some of the content may reflect what he may have stated, however, the context of the article “is inaccurately quoted and intended”. He is of the view that the LPC, the newspaper and Mr CHS Terezakis colluded to set him up. Absent in his response is how he was inaccurately quoted, and the context of his remarks.

[50]       The answering affidavit by the respondent does not constitute a serious, honest and meaningful attempt to answer to and deal with the merits of the application. It is fraught with ad hominem attacks against the chairperson of the LPC rather than dealing with the merits of her affidavit. The respondent’s papers tell a woeful tale of ignorance, ineptness and indifference as far as the Rules are concerned.

[51]       As indicated above, the practical manner in which the courts exercise their disciplinary powers is trite. The enquiry is threefold. The court first decides whether the alleged offending conduct has been established. If the answer is yes, a value judgment is required to decide whether the person concerned is not a fit and proper person as envisaged in the relevant section of the Act. If the answer is again in the affirmative, the court must decide in the exercise of its discretion whether, in all the circumstances of the case, the person in question is to be removed from the roll or merely suspended from practice.

[52]       In casu, the respondent does not dispute his failure to comply with the provisions of the Act, the LPC Rules and the Code of Conduct and, previously, with the provisions of the Attorneys’ Act, the Law Society's Rules and the Rules for the Attorneys’ Profession. On the respondent’s own version, he has failed to comply with the provisions of the LPA, the LPC Rules and the Code of Conduct and, previously, with the provisions of the Attorneys’ Act, the Law Society's Rules and the Rules for the Attorneys’ Profession. He continues to do so without any apology or regret. In his view, his conduct is fully justified.

[53]       The respondent has a right to his beliefs. He is also entitled to litigate as he deems fit. However, the respondent has been exposed as a person who lacks the qualities of a fit and proper person. On his version, he is guilty of contravening section 84 (1) of the Act, and therefore of criminal conduct. He is no longer a fit and proper person to continue in practice as an attorney. The respondent's conduct is wholly incongruous with the calling of an honourable profession. The respondent’s conduct in these proceedings is deplorable. So is his conduct as evidenced by the various affidavits filed in other courts. His conduct is unbecoming of an officer of the court.

[54]       The respondent makes numerous unfounded, offensive, insolent and vexatious allegations against the LPC, its Chairperson and the former Law Society in pleadings and affidavits filed in the High Court, Supreme Court of Appeal and the Constitutional Court. His wave of insults and intemperate comments know no bounds. His unfounded allegations know no bounds, for everyone who disagrees with him becomes the subject of his ridicule and offensive comments, which cannot be associated with an officer of this court. This equally goes for his attack on how judges are appointed at the recommendation of the JSC. His utterances go beyond the free speech, as a right enshrined in our Constitution, which right in any event is not absolute. Human dignity is listed in section 1 of our Constitution as a foundational value. Equally, section 10 of the Constitution provides that everyone has inherent dignity and the right to have their dignity respected and protected. The trampling of these values cannot be promoted and be associated with an officer of the court.

[55]       The respondent is tenacious in his refusal to comply with the law and to be regulated in his practice by the LPC. He shows no remorse. On his version, by failing to comply with the provisions of section 84 (1) of the Act, he has committed an offence in terms of section 93(8) of the LPA and continues to do so. The contention that this court has no jurisdiction over him is unmeritorious. As indicated above not only is it conferred by statute, but this court has inherent jurisdiction and powers over him because of the common law. Any contrary submission in this regard by a legal practitioner is absurd.

[56]       In Law Society, Northern Provinces v Mogami[10], Harms JA said the following, which is apt: “Instead of dealing with the issues they launched an unbridled attack on the appellant. It has become a common occurrence for persons accused of a wrongdoing, instead of confronting the allegation, to accuse the accuser and seek to break down the institution involved. This judgment must serve as a warning to legal practitioners that courts cannot countenance this strategy. In itself it is unprofessional…”

[57]       Judges and the Courts are not and should not be beyond criticism. Judges are only human beings after all, fallible and liable to make errors from time to time. However, our Constitution provides for adequate protection for every dissatisfied litigant. Every decision is liable to be scrutinised, commented on and may be a subject to an appeal. However, any criticism in that regard must not only be informed, but also be fair to the individual Judge or the court. Allegations such as that the judiciary in South Africa is corrupt, which is a generalized statement, is not only unfair, but damages the image of hard-working men and women in the judiciary untainted by allegations of corruption. The way the respondent conducts himself illustrates a lack of character and a lack of integrity. The respondent, no doubt displays unbridled contempt for his regulatory body and the judiciary. He articulates this contempt through consistent reference to the enforcement of the law upon him as somehow being analogous with apartheid.

[58]       It follows logically that an order of suspension from practice should be made only if the court finds that the attorney concerned is a fit and proper person to continue to practice but still wishes to penalise him. In this instance, I come to the unavoidable conclusion that the respondent is not a fit and proper person to continue to practice under the auspices of the honourable profession regard being had to the circumstances by failing to comply with the provisions of section 84 (1) of the Act. He has committed an offence in terms of section 93(8) of the LPA and as indicated above, unapologetically continues to do so. His conduct cannot be countenanced in terms of the applicable statute or common law.

[59]       The courts exercise supervisory powers over the conduct of attorneys, not only in order to discipline and punish errant practitioners, but and more importantly, in order to protect the public. This court has given serious consideration to an order merely suspending the respondent. However, this is not supported by the respondent’s defiant attitude and conduct. The respondent's conduct reflects character defects that, as indicated cannot be tolerated in practitioners and officers of the court, and does not meet the standard of behaviour, conduct and reputation that is expected of attorneys and officers of the court. For the sake of the public, and no less the organised profession, it is of the utmost importance to enforce on all legal practitioners the high standard of duty that rests upon them and demand the great integrity that is expected of them.

[60]       The respondent’s continued breaking of the law under the guise of freedom to conduct his profession cannot go unchallenged. A courtroom is not a place where practitioners and anyone else for that matter, are a law unto themselves.  I am alive to the fact that the implications of an unconditional order removing an attorney from the roll for misconduct are serious and far-reaching. However, if the respondent should in later years apply for re-admission, he will be required to satisfy the court that he is 'a completely reformed character’ and that his 'reformation or rehabilitation is, in all the known circumstances, of a permanent nature'.[11]

[61]       An order of his suspension from practice is entirely incompatible with the finding that he is not a fit and proper person to continue practising[12] as I have already found, particularly given his defiant attitude and continual breaking of the law. The possibility of a repetition of the conduct complained of is accordingly taken into account when it comes to deciding upon an appropriate penalty for proven misconduct. The applicant's counsel asked for attorney and client costs regardless whether or not the application was to succeed. Since this is the usual order in cases where an attorney's name is struck from the roll, there is no conceivable reason why a cost order cannot be made in that regard.

[62]       I accordingly make the following order:

1.The respondent's name is struck from the roll of attorneys of the High Court of South Africa (Gauteng Division). 

2. The respondent must immediately surrender and deliver to the Registrar of this Court his certificate of enrolment as an attorney and conveyancer of this Court.

3. In the event of the respondent failing to comply with the terms of this order detailed in paragraph 2 above within two (2) weeks from the date of this order, the sheriff of the district in which the certificate was issued, be authorised and directed to take possession of the certificate and to hand it to the Registrar of this Court.

4 The respondent be prohibited from handling or operating his trust account(s) as detailed in paragraph 5 below.

5. That Johan van Staden, the Head: Risk Compliance of the 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 the respondent's practice as an attorney and including, also, the separate banking accounts opened and kept by the respondent at a bank in the Republic of South Africa in terms of section 86 (1) of the Legal Practice Act ("LPA") and/or any separate savings or interest-bearing accounts as contemplated by sections 86 (3) and 86 (4) of the LPA, 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:

 

5.1 immediately to take possession of the respondent's accounting records, records, files and documents as referred to in paragraph 6 below 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 of this order;

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 sections 86 (3) and 86 (4) of the Legal Practice Act (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);

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 the 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;

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;

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;

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;

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 86 (5) of the Act 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 10 of this order, or such portion thereof as has not already been separately paid by the respondent to the 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 the respondent is insolvent, to the trustee(s) of the respondent's insolvent estate;

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 Fund;

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

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.

6. The respondent immediately delivers his accounting records, records, files and documents containing particulars and information relating to:

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

6.2 any monies invested by the respondent in terms of sections 86 (3) and 86 (4) of the LPA;

6.3 any interest on monies so invested which was paid over or credited to the respondent; any estate of a deceased person or an insolvent estate or an estate under curatorship administered by the respondent, whether as executors or trustees or curators or on behalf of the executor, trustee or curator;

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

6.5 any insolvent estate administered by the respondent as trustee or on behalf of the trustee in terms of the Insolvency Act 24 of 1936;

6.6 any trust administered by the respondent as trustee or on behalf of the trustee in terms of the Trust Property Control Act 57 of 1988;

6.7 any company liquidated in terms of the Companies Act 61 of 1973, administered by the respondent as or on behalf of the liquidator;

 

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

6.9 the respondent's practice as an attorney of this Court, to the curator appointed in terms of paragraph 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.

7. 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 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.

8. That the curator shall be entitled to:

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;

8.2 require from the persons referred to in paragraph 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 the 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;

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

8.4 wind-up of the respondent's practice;

 9. That the respondent be and is hereby removed from office as—

9.1 executor of any estate of which respondent have been appointed in terms of section 54(1)(a)(v) of the Administration of Estates Act 66 of 1965 or the estate of any other person referred to in section 72 (1);

2.54cm; text-indent: 0.11cm; line-height: 150%; text-decoration: none"> 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 66 of 1965;

9.3 trustee of any insolvent estate in terms of section 59 of the Insolvency Act 24 of 1936;

9.4 liquidator of any company in terms of section 379 (2) read with 379 (e) of the Companies Act 61 of 1973;

9.5 trustee of any trust in terms of section 20 (1) of the Trust Property Control Act 57 of 1988;

9.6 liquidator of any close corporation appointed in terms of section 74 of the Close Corporation Act 69 of 1984;

9.7 administrator appointed in terms of section 74 of the Magistrates’ Court Act 32 of 1944.

10. The respondent be and is hereby directed:

10.1 to pay, in terms of section 87 (2) of the Act, the reasonable costs of the inspection of the accounting records of the respondent;

10.2 to pay the reasonable fees and expenses of the curator; 10.3 to pay the reasonable fees and expenses of any person(s) consulted and/or engaged by the curator as aforesaid;

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

10.5 to pay the costs of this application on an attorney-and-client scale;

11. If there are any trust funds available the respondent shall within 6 (six) months after having been requested to do so by the curator, or within such longer period as the curator may agree to in writing, satisfy the curator, by means of the submission of taxed bills of costs or otherwise, of the amount of the fees and disbursements due to the respondent in respect of his former practice(s), 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.

            12. A certificate issued by a director of the 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.

 

 

MUDAU J

[Judge of the High Court,

Gauteng Division,

Pretoria]

 

I agree

 

TLHAPI J

[Judge of the High Court,

Gauteng Division, Pretoria

 

 

Date of Hearing:                              12 November 2020             

Date of Judgment:                           26 November 2020

APPEARANCES

For the applicant:                           Mr Liam Groome

Instructed by:                                 Rooth & Wessels Inc.

                                                                  

For the Respondent:                       In person

                       

           

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