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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: NO

(3)    REVISED

28 July 2021                                    

                                                           CASE NO: 20873/20

 

In the matter between:

 

THE SOUTH AFRICAN LEGAL

PRACTICE COUNCIL                                                                                          APPLICANT

 

And

 

GAVIN VERNON JOYNT                                                                                      RESPONDENT

This judgment is issued by the Judge whose name is reflected herein and is submitted electronically to the parties/their legal representatives by email. The judgment is further uploaded to the electronic file of this matter on Caselines by the Judge or his/her secretary. The date of this judgment is deemed to be 28 July 2021.

 

JUDGMENT

 

COLLIS J

 

INTRODUCTION

1.         This is an application for the suspension of the respondent from practice as a legal practitioner, alternatively, for the removal of the respondent’s name from the roll of legal practitioners.

 

2.         The Respondent was admitted and enrolled as an attorney of this Honourable Court on 26 October 1993. He practised as a partner at the firm Gavin Joynt and Krynauw Attorneys for the period 01 December 1993 until 29 February 2000.

 

3.          He commenced practising as a sole practitioner under the name and style of Gavin Joynt Attorneys, with effect from 01 March 2000. To date, his name is still on the roll of legal practitioners.^[1]

 

BACKGROUND

4.         The present application was first issued on 25 March 2020, and on 7 July 2020, it was personally served on the respondent.^[2]

 

5.         On 17 July 2020, the Respondent opposed the application[3] and on 13 August 2020, the Respondent filed his Answering Affidavit.[4]

 

6.         On 02 October 2020, the Applicant filed its Replying Affidavit. ^[5]

 

7.         At the hearing of the application, the applicant applied for condonation for the late delivery of its Replying Affidavit. No opposition was given to this request, which request was ultimately favourably considered by the Court. At the hearing, the respondent appeared in person and the matter was subsequently argued. It should also be mentioned that no heads of arguments were filed by the respondent.

 

APPLICABLE LEGAL PRINCIPLES

8.          Now applications of this nature are sui generis and of a disciplinary nature. There is no lis between the applicant and the respondent. The applicant, as custos morum of the profession merely places facts before the Court for consideration.[6]

 

9.         The question whether a legal practitioner is a fit and proper person is not dependent upon any factual findings, but lies in the discretion of the Court.[7]

 

ENQUIRY TO BE CONDUCTED

 

10.     A Court therefore in exercising its discretion, has to determine whether an attorney’s name is to be removed from the roll or to have such attorney suspended from practice. This exercise of a Court’s discretion involves a three-stage enquiry.

 

11.     In Malan & Another v The Law Society of the Northern Provinces [2008] ZASCA 90 at [9]; [2008] ZASCA 90; 2009 (1) SA 216 SCA, it was held that:

 

11.1.  The Court must first decide as a matter of fact whether the alleged offending conduct by the legal practitioner has been established. This is a factual enquiry.

11.2.  Secondly, if the Court is satisfied that the offending conduct has been established, a valued judgment is required to decide whether the person concerned is not a fit and proper person to practise as a legal practitioner.^[8] Differently put, the court ought to weigh up the conduct complained about against the conduct expected of an attorney.

11.3.  Thirdly, the court must decide whether in view if all the circumstances of the case, whether the name of the attorney should be removed from the roll or suspended from practice. Ultimately this is a question of degree.^[9]

 

12.    The court, in exercising its discretion, must base its discretion on facts before it and the facts in question must be proven on a balance of probabilities.[10] The facts upon which the Court's discretion is based should be considered in their totality. The court must not consider each issue in isolation.[11]

 

OBLIGATIONS OF A LEGAL PRACTITIONER

13.    Any legal practitioner, it follows, carries certain legal obligations. A legal practitioner must scrupulously comply with the provisions of the Legal Practice Act, the Attorneys Act and the Rules for the Attorneys Profession especially in relation to the money of a client which is placed into his/her custody and control. Trust money does not form part of the assets of a legal practitioner. The very essence of a trust fund is the absence of risk and the confidence created thereby. The unjustifiable handling of trust money is totally untenable and not only frustrates the legal requirements relating to trust money but also undermines the principle that a trust account is completely safe in respect of money held therein by a legal practitioner on behalf of another person.

 

14.    A legal practitioner must as a result always prefer the interest of his/her clients above his/her own and must exercise the highest degree of good faith is his/her dealings with his/her clients.

 

15.    Legal practitioners are members of a learned, respected and honourable profession and, by entering it, he/she pledges himself/herself with total and unquestionable integrity to society at large, to the courts and to the profession.

 

16.    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 set out above at all times.

 

17.    The law expects from a legal practitioner uberrima fides, the highest possible degree of good faith in his dealings with his client, which implies that at all times his submissions and representations to client must be accurate, honest and frank.

 

INFRACTIONS

18.    To the matter at hand, the deponent to the founding affidavit, lists the following infractions which prompted the applicant to launch these proceedings:

18.1.  Outstanding audit reports and practising without a Fidelity Fund Certificate: In this regard the deponent alleges that the Respondent  has failed to lodge unqualified audit reports for the periods ending 28 February 2018 and 28 February 2019. As a result, the Respondent was not issued with Fidelity Fund Certificates for the years commencing January 2016, January 2017, January 2018, January 2019 and January 2020, as the lodging of unqualified audit reports is a prerequisite for the Respondent to be issued with a Fidelity Fund Certificate. In the absence of having been issued with a valid Fidelity Fund Certificate, the Respondent is not entitled to practise for reward and his clients and the Legal Practitioners’ Fidelity Fund is at risk. Albeit, that the Applicant has addressed correspondence to the Respondent to and cautioned him that the Applicant will apply for his suspension, he had simply failed to answer to correspondence addressed to him by the Applicant in this regard.^[12]

18.2.  Secondly, on 1 December 2014, a disciplinary hearing was held by the Council. At this hearing, the Respondent pleaded guilty to the charge proffered against him, and a fine of R 10 000 was imposed, which was payable in monthly installments of R 2000 per month.  Pursuant thereto, and on 16 January 2015, the Applicant dispatched an invoice to the Respondent and in response thereto, the Respondent only paid, R 2500 towards this fine. To date a balance of R 7500 remains unpaid and despite several letters directed to the Respondent to call upon him to pay, no further payments have been received. The Applicant given the Respondent’s failure to pay the total of the fine so imposed, called the Respondent to another disciplinary hearing, which hearing the Respondent has also failed to attend to. [13]  

18.3.  Further to the disciplinary hearing held in October 2018, the Applicant on 11 March 2019 had dispatched an invoice for the legal costs incurred in respect of the disciplinary hearing so conducted. The invoice amount was for a total of R 958.28 and to date, the Respondent has failed to pay this outstanding amount due by him, which is in contravention of Rule 2.24 of the Rules for the Attorneys Profession alternatively, Rule 6 of the Legal Practice Council Rules.[14]

18.4.  As per the founding affidavit, the deponent further alleges, that the Respondent has failed to effect payment of his Fidelity Fund Certificate fees in the amount of R 345 for the 2019 financial year. His failure to do so, is a contravention of Rule 2.24 of the Rule for the Attorneys Profession, alternatively, a contravention of Rule 6 of the Legal Practice Council Rules.[15]

 

19.    In opposition, the following defences have been raised by the Respondent:

19.1.  In respect of his outstanding audit reports and practicing without a Fidelity Fund Certificate the Respondent avers that he has been at loggerheads with his auditors for a very long time and it is this reason that has resulted in his failure to have submitted audit reports for the period ending February 2018 and February 2019 to the Legal Practice Council. In his answering affidavit, he conceded that he has not been issued with certain Fidelity Fund Certificates as his trust reports has not been lodged with the Legal Practice Council.[16]

19.2.  In respect of his outstanding fine imposed on him by the council, he admitted having pleaded guilty to a charge on 1 December 2014, in respect of which a R 10 000.00 fine was imposed, payable in monthly installments of R 2000 per month.[17] In his answering affidavit there is however no express denial that in reducing this fine that he had only but paid an amount of R 2500 towards this fine. His affidavit is also silent as to why he had been remiss to pay the remainder of the fine so imposed by the Legal Practice Council and furthermore, it is also silent as to his failure to attend a subsequent disciplinary hearing as a result thereof.

19.3.  As to his failure to have paid the outstanding costs for the disciplinary hearing held on 30 October 2018, the respondent alleges, that albeit that he directed correspondence to the Legal Practice Council without a reply having been received from them, that he proceeded to pay the Council the costs due by him. It is however also noteworthy, that no proof of payment is however annexed to his answering affidavit to support this allegation so made by him.[18]  

19.4.  As for the outstanding fees for the Fidelity Fund Certificate, the Respondent alleges, that he did pay the amount levied, but likewise no proof of payment of such fees had been annexed to his answering affidavit.[19] 

 

20.    In its replying affidavit, the Applicant sets out, that the responsibility to ensure that audit reports are submitted to the Council lies with the Respondent and not with his auditors and it stands to reason that where he fails to submit same, that he as the legal practitioner will be guilty of contravening the Applicants’ rules for having practised without being issued with a Fidelity Fund Certificate.[20]

 

21.    In respect of the failure to have repaid the fine imposed of R 10 000, the Respondent likewise, is in contravention of the Applicant’s Rules.

 

22.    As for the costs imposed and his failure to have paid same, no proof has been annexed to support his contention, this despite him being furnished with an invoice upon a request directed by him to the Council.[21]

 

23.    In the present matter, it is noteworthy to mention, that the conduct of the Respondent is, inter alia, in contravention of the following provisions of the Legal Practice Act, the Code of Conduct and the LPC Rules:

 

23.1.  Sections 84(1) and 84(2) of the LPA in that he is practising without  being in possession of a Fidelity Fund Certificate for the years commencing January 2016, January 2017, January 2018, January 2019 and January 2020 and while practising or acting as such, receives and accepts fees, rewards and disbursements from clients;

1.           Rule 54.23 and Rule 54.24 of the Rules in that he failed and/or neglected to file his firm’s unqualified audit report within or at the required time;

2.           Clause 16.1 of the Code of Conduct in that he failed, within a reasonable time, to reply to all communications which require an answer unless good cause for refusing an answer exists;

3.           Clause 16.2 of the Code of Conduct in that he failed to respond timeously and fully to requests from the Applicant for information and/or documentation which she was able to provide;

4.           Clause 16.3 of the Code of Conduct in that he failed to comply timeously with directions from the Applicant; and

5.           Rule 6 in that he failed to pay a fine imposed on him, to the Applicant.

 

24.    Given the totality of what has been placed before us, it is clear that the Respondent does not want to take responsibility for his errant behaviour and seems to blame anyone and everyone but himself. He continues to display an untenable attitude towards the legal profession regulatory framework and repeatedly has demonstrated his disdain for the institution of the Applicant.

 

25.    Furthermore, even in instances where he on occasion was imposed a fine by the Council, did he elect not to adhere to the repayment terms which he requested and which terms were acceded to by the Council. In his own words, he is a seasoned practitioner for more than 25 years and as such cannot behave like a junior member who continuously transgresses. 

 

26.    Given the conspectus of evidence placed before us, I am satisfied that the Applicant has succeeded in placing several offending conduct before us. These conduct of the Respondent, is contrary with what that of an attorney ought to be.

 

27.    In exercising this court’s discretion, I am of the view, that the conduct of the Respondent is indeed dishonourable, unprofessional and unworthy of a practitioner.

 

28.    As such, given the seriousness of the infractions, and the multitude of these infractions, I of the opinion, that the Respondent is not a fit and proper person to continue to practise as a legal practitioner. The only appropriate sanction therefore, is to suspend the Respondent from practising as a legal practitioner. Any other order will send the wrong message to the general public that misconduct of such a grievous nature is condoned by the Courts.

 

COSTS

29.    As to the appropriate costs to be awarded by this court, it is trite that in applications of this nature, there is no lis between the Applicant and the Respondent. The Applicant before court is performing its statutory function of placing facts before the court to exercise its disciplinary powers over truant practitioners.

 

30.    In the founding affidavit, the Applicant seeks costs irrespective the outcome of the application on an attorney-and-client scale to be awarded in its favour.[22]

 

31.    I could find no basis to deprive the Applicant of such costs.

 

ORDER

32.    In the result the following order is made:

 

1.           That GAVIN VERNON JOYNT (hereinafter referred to as the Respondent) be suspended in his practice as a legal practitioner of this Honourable Court.

 

2.           The Respondent immediately surrenders and deliver to the registrar of this Honourable Court his certificate of enrolment as a legal practitioner of this Honourable Court.

 

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.

 

4.           That the Respondent be prohibited from handling or operating on the trust accounts as detailed in paragraph 5 hereof.

 

5.           That Johan van Staden, the Director of the Gauteng Provincial Office      of the Applicant or any person nominated by him, be appointed as curator bonis (curator) to administer and control the trust accounts 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 a legal practitioner 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 86(1) & (2) of Act No 28 of 2014 and/or any separate savings or interest-bearing accounts as contemplated by section 86(3) and/or section 86(4) of Act No. 28 of 2014, 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 and subject to the approval of the Legal Practitioners’ Fidelity Fund Board of Control (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 Legal Practitioners’ Fidelity Fund Board of Control 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 86(1) & (2) and/or section 86(3) and/or section 86(4) of Act No 28 of 2014 (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 appear 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 Legal Practitioners’ Fidelity Fund Board of Control, 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 Legal Practitioners’ Fidelity Fund Board of Control, 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 that he considers are lawfully due to trust creditors, to pay such claims in full but subject always to the approval of the Legal Practitioners’ Fidelity Fund Board of Control;

 

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 Act No 28 of 2014 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 Legal Practitioners’ Fidelity Fund Board of Control, 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 Legal Practitioners’ Fidelity Fund;

 

5.9        subject to the approval of the chairman of the Legal Practitioners’ Fidelity Fund Board of Control, to appoint nominees or representatives and/or consult with and/or engage the services of legal practitioners, 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 Legal Practitioners’ Fidelity Fund Board of Control 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.   That the Respondent immediately deliver the 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 a legal practitioner;

6.2        any monies invested by the Respondent in terms of section 86(3) and/or section 86(4) of Act No 28 of 2014;

6.3        any interest on monies so invested which was paid over or credited to the Respondent;

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;

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;

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;

6.7        any company liquidated in terms of the provisions of the Companies Act, No.61 of 1973 read together with the provisions of the Companies Act, No. 71 of 2008, 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 a legal practitioner of this Honourable 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.   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 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 the 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 the Respondent has been appointed in terms of section 54(1)(a)(v) of the Administration of Estates Act, No. 66 of 1965 or the estate of any other person referred to in section 72(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;

 

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

 

9.4        liquidator of any company in terms of section 379(2) read with 379(e) of the Companies Act, No. 61 of 1973 and read together with the provisions of the Companies Act, No 71 of 2008;

 

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

 

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

 

9.7        administrator appointed in terms of Section 74 of the Magistrates Court Act, No 32 of 1944.

 

10.       That the Respondent be and is hereby directed:

 

10.1.  to pay, in terms of section 87(2) of Act No. 28 of 2014, the reasonable costs of the inspection of the accounting records of the Respondent;

 

10.2.  to pay the reasonable fees of the auditor engaged by applicant;

 

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

 

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

 

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

 

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

 

 

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 the 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;

 

 

12.    That a certificate issued by a director of the Legal Practitioners’ 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.

 

 

                                      C.J. COLLIS 

                                       JUDGE OF THE HIGH COURT 

 

 

 

 

I agree and it is so ordered.

 

 

 

                                N.N. BAM

                                       ACTING JUDGE OF THE HIGH COURT

 

                                                                                                                                                                                

                                                                                                                                               

Appearances

For the Applicant                            : Miss S.L Magardie (Attorney)

Attorney for the Applicant             : Damons Magardie Richardson

                                                         Attorneys

For the Respondent                         : In persona

Attorney for the Respondent          : In persona

Date of Hearing                              : 02 March 2021

Date of Judgment                            : 28 July 2021

 

 

Judgment transmitted electronically.

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