IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

( 1) REPORT ABLE: 'M' / NO (2) OF INTEREST TO OTHER JUDGES: •tNO (3) REVISEDV-

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In re:

Mashilo Cyril Ernest Bopape

and

The Law Society of the Northern Provinces

In re:

The Law Society of the Northern Provinces

and

Mashilo Cyril Ernest Bopape

JUDGMENT

MOLEFEJ

Case No: 12484/2016

Applicant

Respondent

Case No: 66185/2016

Applicant

Respondent

[1] The applicant ("Mr Bopape") in the proceedings launched under case number

12484/2016 seeks an order setting aside the suspension order granted by this Court

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on 9 September 2013, suspending him from practising as an attorney and from re-

admission as an attorney.

[2] The Law Society of the Northern Province ('The Law Society") in turn, in

proceedings launched under case number 6685/2016, seeks an order that Mr

Bopape be struck from the roll of attorneys of this Court in terms of section 22 of the

Attorneys' Act1 ("the Act") and other ancillary orders, that normally follow on the

granting of an order of this nature. Both these applications are opposed. It is

convenient and practical to deal with both applications at the same time.

Background to both applications

[3] Mr Bopape was admitted as an attorney of this Court on 7 December 2000

and previously practised as such, for his own account as a single practitioner under

the name and style of MC Mr Bopape Inc, in Pretoria, Gauteng Province.

[4] Mr Bopape was suspended from practising as an attorney for a period of two

years on 9 September 2013. In terms of the suspension order, he was ordered to

bring a formal application to satisfy the Court that he could again be considered to be

a fit and proper person to practise as an attorney, once his period of suspension had

lapsed.

[5] The two year period of Mr Bopape's suspension lapsed on 8 September 2015.

On 17 February 2016, Mr Bopape brought the current application for the upliftment of

the suspension order, granted on 9 September 2013.

[6] Initially, the Council of the Law Society resolved not to oppose the application

on condition that Mr Bopape amended the notice of motion to provide for the

upliftment of the suspension, instead of the setting aside of the suspension order as

well as to correct the reference to his period of suspension from three years to two

years, in accordance with the terms of the suspension order.

[7] Subsequent to the resolution of the Council, a complaint was lodged against

Mr Bopape which was submitted to the Law Society by the Road Accident Fund to

1 Act 53 of 1979.

3

the effect that despite the suspension order of 9 September 2013, Mr Bopape

continued practising as an attorney during the period of his suspension.

[8] On the basis of this complaint, the Law Society accordingly resolved to

oppose the upliftment of the suspension application and to launch proceedings for

the striking of the name of Mr Bopape from the roll of attorneys. The Law Society's

answering affidavit was delivered on 7 September 2016. Mr Bopape did not file a

replying affidavit to the Law Society's answering affidavit and instead delivered a

supplementary founding affidavit on 29 November 2016.

[9] The Law Society's striking application was personally served on Mr Bopape

on 26 August 2016. Mr Bopape failed to file an answering affidavit and the striking

application, was accordingly enrolled for hearing on 10 March 2017.

[10] On 10 March 2017, Mr Bopape sought a postponement of the striking

application for purposes of filing an answering affidavit. The Court granted a

postponement of the striking application to 2 May 2017 and ordered that the striking

application be heard together with the upliftment application.

Upliftment of the suspension application

General Principles

[11] The question whether an attorney is no longer a fit and proper person to

practice as such lies in the discretion of the Court in terms of section 22(1)(d) of the

Act. The appropriate sanction, namely a suspension from practice or striking from

the roll, also lies within the discretion of the Courf. The Court also has inherent

jurisdiction to determine the fitness of attorneys to practise over and above the

provisions of the Act3.

[12] The Law Society has the necessary locus standi to oppose an application for

the re-admission and re-enrolment of an attorney where the merits of the case

generally militates against the re-admission and re-enrolment of an attorney. The

2 Jasat v Natal Law Society 2000 (3) SA 44 (SCA). 3 Law Society of the Transvaal v Tloubatla [1999) 4 ALL SA 59 (D).

4

Law Society also has a duty and responsibility in this regard towards the Court and

the general public4.

[13] Section 16(a) of the Act provides that:

"Any person who applies to a court to be admitted or readmitted and enrolled as an attorney,

shall satisfy the society having jurisdiction wherein he or she so applies that he or she is a fit

and proper person to be so admitted or re-admitted and enrolled".

[14] It is in the discretion of the Court to decide whether or not the applicant is a fit

and proper person to be re-admitted and enrolled. The onus to convince the Court

that he can be regarded a fit and proper person to be re-admitted and allowed to

continue to practice, rests on the applicant. An applicant must show, on a balance of

probabilities:

14.1 that there has been a genuine, complete and permanent reformation

on his part;

14.2 that the defect of character or attitude which led to him being adjudged

not fit and proper no longer exists; and

14.3 that, if re-admitted, he will in future conduct himself as an honourable

member of the profession and will be someone who can be trusted to

carry out the duties of an attorney in a satisfactory way, as far as

members of the public is concerned5.

[15] In Kudo v Cape Law Societ/, Van Winsten J stated:

"In considering whether this onus has been discharged the Court will have regard to the

nature and degree of the conduct which occasioned applicant's removal from the roll , to the

explanation, if any, afforded by him for such conduct which might, inter alia, mitigate or even

perhaps aggravate the heinousness of his offence, to his actions in regard to an enquiry into

his conduct and proceedings consequent thereto to secure his removal, to the lapse of t ime

between his removal and his application for reinstatement, to his activities subsequent to

removal, to the expression of contrition by him and its genuineness, and to his efforts at

repairing the harm which his conduct may have occasioned to others. These considerations

are not necessarily intended to be exhaustive and the weight to be attached to them must

naturally vary with the circumstances of the case. They all, however relate to the assessment

4 Law Society, Transvaal v Behrman 1981 (4) SA 538 at 549 E-H (AD). 5

Kudo v Cape Law Society 1977 (4) SA 659 (A) at 676 A-E. 6

1972 (4) SA 342 (C).

5

of the applicant's character reformation and the chances of his successful conformation in the

future to the exacting demands of the profession he seeks to re-enter".

[16] The reasons for Mr Bopape's suspension from practice were inter alia based

on the following findings:

16.1 he admitted to having acted dishonestly and irresponsibly by accepting

or paying an amount of R40 OOO, 00 to a Claim Handler of the Road

Accident Fund, in order to obtain a referral of an instruction to generate

income;

16.2 he represented the client in the referred third party claim without having

received a valid mandate;

16.3 he prepared a bill of costs containing fraudulent items; and

16.4 failed to pay, to the former attorney of record of the claimant, his

portion of fees and only paid after a complaint was lodged against him.

[17] In his founding affidavit, filed in support of the application to uplift his

suspension, Mr Bopape has inter alia made the following allegations:

17 .1 that he admitted his guilt and never attempted to minimize the

seriousness of his dishonesty and that he had immediately advised the

Law Society and the Court that he had acted dishonestly;

17.2 that since his suspension, he was employed on a contractual basis by

various law firms, as a tracing and investigating agent to trace clients

who owed the attorneys money, collecting outstanding fines by

defaulters and investigate the merits of motor vehicle accidents and

criminal cases;

17.3 that these tasks greatly assisted him in his rehabilitation and

reformation;

17 .4 that since his suspension, he completed the Practice Management

course and a Diploma in Insolvency;

17.5 that he accepted the full blame of what happened and that he had been

able to identify his character defects and have overcome them in full.

He assured the Court that he would never breach the rules of the Law

6

Society or commit any act of dishonesty in future and will always

uphold the integrity and prestige of the attorneys' profession.

[18] Counsel for the Law Society7, referred the Court to the record of the

proceedings of the disciplinary committee which took place on 23 November 2011

and argued that Mr Bopape initially did not admit guilt to the charges levelled against

him at the disciplinary hearing and his conduct during the time of his suspension,

indicates that he is still dishonest.

[19] I do not agree with this argument nor do I see the relevance of the disciplinary

hearing record to the upliftment of the suspension application before us. The record

shows that at the hearing of Mr Bopape's suspension, he admitted to all the

transgressions levelled against him and pleaded guilty. It was submitted, on Mr

Bopape's behalf at the hearing, that he had shown deep remorse and regret and

appreciation of his transgressions. He was then duly sanctioned by the Court with

an imposition of a suspension order.

[20] Counsel for the Law Society further argued that although Mr Bopape alleges

that subsequent to his suspension he was employed by various firms of attorneys as

a tracing and investigating agent, the firms are not identified and none of those firms

have filed confirmatory affidavits. The confirmatory affidavits attached to the

founding affidavit are deposed to by Mr Bopape's friends. Counsel submits that the

Court should consider these confirmatory affidavits with a degree of caution.

[21] I agree that witnesses who make affidavits to testify to the fitness and

propriety of the applicant to be an attorney, who are friends or acquaintances, have

no knowledge of the demands of the office of an attorney. It would however be to

the benefit to the Court to have legal submissions made to it, not only by the

applicant but also by legal representation obtained by the Law Society from the

applicant's peers through which its views can be expressed to the Court.

7 Mr L Groome.

7

[22] The Law Society further submitted that Mr Bopape acted in contempt of the

suspension order in that:

22.1 he acted as an attorney during the period of his suspension;

22.2 he shared professional fees with attorney Tlalang during the period of

his suspension;

22.3 he failed to hand his office files to the curator appointed in terms of the

suspension order.

[23] In terms of the provisions of section 83 (4) of the Attorneys' Act, a practitioner

who has been suspended from practice shall in no way, directly or indirectly continue

to practise as an attorney or be employed in any capacity connected with the

profession of a practitioner. A contravention of this section constitutes an offence. It

is on this basis that the Law Society submits that it is not satisfied that the applicant

can be considered to be a fit and proper person to resume practice.

[24] As above-mentioned, the Law Society had initially resolved not to oppose the

application for the upliftment of the suspension. In Botha v Law Society, Northern

Provinces8, the Court found that new facts setting out that an attorney rehabilitated

since the granting of the trial court order may be taken into account on appeal. This

principle enunciates the fact that facts pertaining to rehabilitation after the

misconduct had been committed and the final hearing of the matter may also be

taken into account.

[25] On the papers before us, Mr Bopape has expressed remorse towards the

Court and the profession. On the facts which led to his suspension, Mr Bopape

committed a one time dishonest act and there was no actual financial loss suffered

by the claimant and the attorney whose mandate was terminated by Mr Bopape. Mr

Bopape has also voluntarily enrolled himself in a Practice Management course and

completed a Diploma in Insolvency since his suspension. He was suspended for two

years with effect from 9 September 2013 and there has been a lapse of more than

three years since his suspension and his application for reinstatement.

8 2009 (1) SA 227 (SCA).

8

[26] I am satisfied that Mr Bopape has convinced the Court, on a balance of

probabilities, that there is a genuine and complete reformation on his part and that

the defect of character or attitude which led to his being adjudged not being fit and

proper person no longer exists.

[27] I accordingly make the following order:

The upliftment of the suspension order, granted on 9 September 2013, is

granted.

Application to strike Mr Bopape's name from the of attorneys

[28] The Law Society in proceedings launched under case number 66185/2016,

seeks an order that Mr Bopape be struck from the roll of attorneys in terms of section

22 of the Act, together with other ancillary orders that normally follow on the granting

of an order of this nature. This application is opposed.

General Principles

[29] The question whether an attorney is no longer a fit and proper person to

practice as such lies in the discretion of the Court in terms of section 22 ( 1) ( d) of the

Act. The appropriate sanction, namely a suspension from practice or striking from

the roll, also lies within the discretion of the Court9.

The Court also has inherent jurisdiction to determine the fitness of attorneys to

practice, over and above the provisions of the Attorneys Act 1°.

[30] An application of this nature is in itself a disciplinary inquiry and sui generis in

nature. There is no /is between the Law Society and the practitioner. The Law

Society as custom morum of the profession, places facts before the Court for

consideration 11 .

[31] In exercising its discretion, the Court is faced with a three-stage inquiry:

9 Jasat v Natal Law Society supra. 10 Law Society of the Transvaal v Tloubatla supra at 63 G-E. 11 Prokureurs Orde van Transvaal v Kleynhans 1995 (1) SA 839 (T).

9

31.1 the first inquiry is for the Court to decide whether or not the alleged

offending conduct has been established on a preponderance of

probabilities;

31 .2 the second inquiry is whether the person, in the discretion of the Court,

is a fit and proper person to continue to practise. This involves the

weighing up of the conduct complained of against the conduct

expected of an attorney. This entails a value judgment;

31.3 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 12.

[32] The facts upon which the Court's discretion is based should be considered in

their totality and not each issue in isolation and the facts are to be established on a

balance of probabilities. The opinion or conclusion of the Law Society that a

practitioner is no longer a fit and proper person to practise as an attorney carries

great weight with the Court, although the Court is not bound by it 13.

[33] The Law Society brought the application to strike Mr Bopape from the roll of

attorneys on the grounds that Mr Bopape continued practising as an attorney despite

having been suspended from practice on 9 September 2013. Further, that he is in

contempt of the Court order of 9 September 2013, in that he failed to hand over all

office files relating to his practice to the appointed curator. The Law Society also

relied on all the contraventions and transgressions which led to Mr Bopape's

suspension.

[34] In my opinion, the Law Society cannot rely on the same grounds which led to

Mr Bopape's suspension on 9 September 2013. The issue of suspension has

12 Jasat v Natal Law Society supra at SlB-1.

13 Kaplan v Incorporated Law Society, Transvaal 1981 (2) SA 762 (T).

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already been dealt with and Mr Bopape was duly sanctioned. Those grounds are

therefore not relevant in the present striking application.

Road Accident Fund Complaint

[35] Shortly after Mr Bopape's application for the upliftment of his suspension was

lodged, the Law Society received a complaint from the Road Accident Fund ("RAF")

dated 26 May 2016. The complaint was that the RAF conducted a forensic audit

which revealed that Mr Bopape retained files from his practice and dealt with these

matters under the name of Tlalang attorneys. The forensic audit conducted by the

complainant further revealed that Mr Bopape settled several third party claims with

the RAF during his suspension, in the name of Tlalang attorneys.

[36] Attorney Tlalang confirmed that she had an arrangement with Mr Bopape to

share contingency fees generated from Mr Bopape's files in her possession and that

her trust banking account was utilized in this regard in order for Mr Bopape to bypass

his suspension order. Tlalang also advised the Law Society that several files

formerly handled by Mr Bopape's firm are now in possession of her firm and that Mr

Bopape had taken over her firm and utilized it as a vehicle for fraud.

[37] Mr Bopape denied participation in settlement negotiations with the RAF and

denied that he acted on behalf of the claimants or the plaintiffs. He explained that he

gave the files to Tlalang attorneys prior to his suspension, for the purpose of

finalising the outstanding third party claims with the RAF.

[38] Mr Bopape's counsel14 submitted that attorney Tlalang went to the RAF to lay

a complaint against Mr Bopape when she had to pay Mr Bopape his share of the

contingency fees as per their agreement.

[39] In relation to the allegations concerning Mr Bopape's misconduct, I have

regard to section 22 (1) (d) of the Act, which provides that a person who has been

admitted and enrolled as an attorney may on application of the Law Society, be

14 Mr KM Rontgen.

11

struck off 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.

[40] In dealing with the complaint that Mr Bopape continued to practice as an

attorney during his suspension from practice, the Law Society relied on

correspondence by Mr Bopape on a letterhead of his former practice, dated 15 June

2015, reflecting him as director, stating that the Sheriff effected personal service of

this application on him on 26 August 2016. An inference was then drawn that Mr

Bopape was still practising as an attorney during his suspension. I have noted that

the facts relied upon by the Law Society does not exclude every reasonable

inference, save for the one sought to be drawn. In my opinion this alleged offending

conduct has not been established on a balance of probabilities.

[41] It was submitted on behalf of the Law Society that in addition to the above-

mentioned transgression, Mr Bopape failed to hand all the office files, relating to his

practice, to the appointed curator as per the suspension order. I have noted that this

alleged offending conduct was never raised by the Law Society during Mr Bopape's

period of suspension. As aforementioned, when Mr Bopape brought the application

for the upliftment of his suspension, the Law Society resolved not to oppose the

application and this alleged misconduct was never mentioned or considered. I am

therefore not satisfied that the alleged offending misconduct has been established on

a balance of probabilities.

[42] Regarding the RAF complaint, Mr Bopape's version is that prior to his

suspension, he handed some of the RAF files to Tlalang attorneys, simply acting in

the best interest of his clients. He conceded that he should have informed the Law

Society about this arrangement. He also confirmed that an arrangement was made

between him and attorney Tlalang to share the contingency fees generated from

these files. He apologized for acting in a manner which was not "technically correct".

[43] I find it strange that attorney Tlalang could on the one hand confirm to the Law

Society the arrangement with Mr Bopape to share the contingency fees relating to Mr

Bopape's RAF files, with her firm's trust banking account being utilized in this regard,

12

but at the same time make allegations that Mr Bopape was greedy and dishonest

and that he utilized her firm as a vehicle for fraud.

[44] Mr Bopape's submission is that he never participated in any settlement

negotiations with the RAF regarding these matters but that attorney Tlalang attended

to all the matters. In my opinion, Mr Bopape has sufficiently rebutted the allegation

of misconduct in this regard. Furthermore, in my view, the Law Society should have

fully investigated this alleged misconduct, using its internal processes, prior to

bringing the striking application without proper investigation to ascertain that Mr

Bopape indeed fraudulently utilized Tlalang attorneys' trust banking account.

Although there might be some merit on this complaint, in its current state as

presented to the Court, it does not in my opinion amount to a contravention. I am

therefore not satisfied that the Law Society has established the offending conduct on

which it relies, on a preponderance of probabilities. The Law Society failed to

investigate the complaint adequately before proceeding with the application.

[45] The implications of an order to remove an attorney from the roll for

misconduct are serious in nature. Such an order is not ordinarily made unless the

court is of the opinion that the misconduct in question is of a serious nature and that

it will manifests as a character defect or moral lapses and lack of integrity15. Mr

Bopape's counsel submitted that Mr Bopape's only mistake was to enter into an

agreement with attorney Tlalang in respect of files handed over to her prior to his

suspension.

[46] Having considered the alleged misconducts, I am not convinced that a proper

case has been made out to justify that Mr Bopape is no longer a fit and proper

person to continue practising as an attorney.

[47] The Law Society has prayed for an order for costs on an attorney and client

scale. The general rule in matters of this nature, is that the respondent has to pay

the costs of the applicant on an attorney and client scale, this is due to the statutory

duty of the Law Society to approach the Court, not as a normal litigant but in

15 Ex parte Wilcocks 1920 TPD 243 at 245.

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compliance with its public duty.16 On the facts of the present application, there is no

reason in my view to depart from this general rule.

[48] In the premises, I would make the following order:

1. The application under case number 12484i2016 for the upliftment of

the suspension order, granted against Mr Bopape on 9 September

2013, is granted with no order as to costs;

2. The application under case number 66185i2016 for an order that Mr

Bopape be struck from the roll of attorneys is dismissed;

3. Mr Bopape is ordered to pay the costs of the striking application under

case number 66185i2016 on an attorney and client scale.

JUDGE OF T E HIGH COURT

I AGREE

ACTING JUDGE OF THE HIGH COURT

16 See Law Society of the Northern Provinces v Sonntag 2012 (1) SA 372 (SCA) at par 20 and Law Society of the Northern Province v Dube [2012) 4 All SA 251.

APPEARANCES:

On behalf of Applicant / Respondent

Instructed by

On behalf of Applicant / Respondent

Instructed by

Date Heard

Date Delivered

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Mr K M Rontgen

Rontgen and Rontgen Inc, Pretoria

MrLGroome

Rooth and Wessels Inc, Pretoria

02 May 2017

08 August 2017