---

 

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case number:  2009/2017

In the matter between:

THE LAW SOCIETY OF THE FREE STATE                                                          Applicant

and

YOLANDI HEWETSON                                                                                 1^STRespondent

ALEXANDER FOWLY HEWETSON                                                           2^ND Respondent

HEWETSON INCORPORATED                                                                    3^rd Respondent

 

HEARD ON:                 14 SEPTEMBER 2017

JUDGMENT BY:          MATHEBULA, Jet CHESIWE, AJ

DELIVERED ON:         15 DECEMBER 2017

[1] This is an application in terms of section 22 (1) (d) of Act 53 of 1979 (the Act") wherein the applicant seeks an order for the removal of the names of the first and second respondents from the  roll of  attorneys  alternatively  that  the  first respondent  be suspended for such a period and on such conditions as this Court may deem fit together with ancillary relief. The first respondent is opposing the application.  The second respondent is not opposing it. No papers were filed or any appearance made on his behalf during the proceedings. The relevant provisions of  section 22  (1) of the Act read as follows:

“Any person who has been admitted and enrolled as an attorney may on application by the society concerned be struck off the roll or suspended from practice by the court within the jurisdiction of which he or she practices-

….

(d) if he or she, in the discretion of the court, is not a fit and proper person to continue to practice as an attorney."

[2] The first and second respondents (who are married to each other) were admitted as attorneys on 15 January 1998 and 14 February 1985 respectively by the Free State High Court. They practiced in an incorporated practice co-directors under the name and style Hewetson Incorporated in Welkom.

[3] The first respondent practised for a period of approximately nineteen (19)  years prior to the institution  of this application.    On 15 January 2015 the first responded deposed to an affidavit wherein she made serious allegations of misappropriation of trust monies against the second respondent. At that stage the deficit was estimated at R 1 789 766.56. It is important to note that she distanced herself from any wrongdoing. The affidavit with its damning allegations was delivered to the applicant. According to her, she became aware of massive irregularities perpetrated by the second respondent in December 2015. In order to mitigate further damages, she changed his access to the trust bank account and suspended him from the office. She undertook with the assistance of the members of her staff informal investigations which uncovered a long list of transgressions allegedly by the second respondent. These are part of the record and explained in the affidavits of Mandie Janse van Resburg, Jacqui Labuschagne, Andries Knoetse, Herbert Charles Van Schalkwyk and Patrick Malama which were also made available to the applicant.

[4] These allegations prompted the applicant to appoint an independent auditor to conduct a special trust investigation. The first respondent gave her full co-operation. In the compilation of their report PFK Chartered Accountants and Business Consultants performed in accordance with their procedures and made certain factual findings. They identified a plethora of transactions entered in the books of the third respondent without a proper basis. In some cases, expenses were paid out of the funds of other trusts creditors. These were in cases where the second respondent and his son were involved through their other business entities. The total amount involved was calculated to R1 583 066.95. Loans to the value of R305 489.09 made to the first respondent from the funds of some trust creditors. An amount of R54 952.12 belonging to a beneficiary in an Estate was deposited in the personal account of the second respondent. Personal items like furniture were paid for with trust monies. The Auditors concluded that transactions to    the    value  of R7 492 858.54 could not be traced to    any   supporting documentation. They also found lapses to ....

[5] The issues before us is whether taking into consideration the conduct of the first and second respondents that they are still fit and proper person to continue practicing as attorneys.

[6] In  this  matter,  counsel  for  the  applicant  submitted  that their

names  should be removed from  the roll of attorneys.   On the other hand, counsel for the second respondent argued that given the circumstances leading to the application, she should be warned. I will return to this aspect later.

[7] The court has repeatedly held that section 22 envisaged a three stage enquiry whether to remove from the roll or suspend a person from practice. Firstly, the court must decide whether the alleged misconduct had been established on a preponderance of possibilities. Secondly, whether in the discretion of the court, the person concerned was a fit and proper to continue to practice. In this regard the court makes a value judgement weighing up the conduct which is the source of the complaint against the conduct expected of an attorney. Thirdly, given all the circumstances the attorney concerned should be removed from the roll or suspended from practice. This is the correct approach that had been followed in Jasat v Natal Law Society 2000 (3) SA 44 (SCA) at 51 C-E; Law Society of the Cape of Good Hope v Buelricks 2003 (2) SA 11 (SCA) at 11 1-J; Malan and another v

Law Society, Northern Provinces [2008] ZASCA 90; 2009 (1) SA 216 (SCA) at 219 B-G.

[8] A far as the second respondent is concerned, it is evident that he is not a fit and proper person to continue to practice as an  attorney. He admitted in his affidavit that he was guilty  of  a number of transgressions regarding the handling of the trust account and compliance with the rules of the applicant and the governing Act. There is also overwhelming evidence as encapsulated in the affidavits, auditors report and supporting documents that the books of the third respondent were in a mess. These are all part of the record and all fingers are pointing at him as the protagonist. I am satisfied that a case has been made out by the applicant that his name must be removed from the roll of attorneys.

[9] I now turn to the first respondent. It is an established fact that the books of the third respondent whose directors were the first and second respondents were in shambles and not kept in terms of the rules of the applicant. In addition there was a  huge  trust deficit uncovered by investigations launched by the first respondent and auditors appointed by the applicant. The first respondent is claiming innocence in  this  entire  accounting morass.

[10] Paragraph 3.3.2 of the affidavit of Mandie Janse van Rensburg details the payment transactions that were made without proper justification.  They are as follows:-

"3.3.2.1       29  May 2013 -   MM Liphoko  R7 000.00 (seven thousand rand) an unknown person.

3.3.2.2                4 November 2013 -  FR  Godfrey  R15 000.00  (fifteen thousand  rand)

3.3.2.3                9 April 2014 - Sheriff Welkom - 10 % deposit for 36 Cypress, bought under AF Hewetson's name  at auction. The amount is R71 006.70 (seventy one thousand and six rand, seventy cents). See attached copies of the file cover and bank statement, as well as Lexpro statement confirming the transfer of funds out of this account.

3.3.2.4                24 April 2014 - Sheriff Welkom - suspected deposits for properties at auction in the amount of R42 006.70 (forty two thousand and six rand, seventy cents) and R38 006.70 (thirty eight thousand and six rand, seventy cents)

3.3.2.5                 25 April 2014 - MF Molefi R6 000.00 (six thousand rand) an unknown person.

3.3.2.6                 9 May 2014 - Grace Estates Mayor (eleven thousand five hundred rand), for an unknown reason.

3.3.2.7                26 May 2014- Maree van Wyk 60 Othello R32 051. 13 ( thirty two thousand and fifty one rand, thirteen cents)-: 60 Othello was a property bought under AF Hewetson's own name at auction on the 15th April 2014.

3.3.2.8                 11 July 2014 - Matjhabeng Rates Clearance Certificate in the amount of R29 701.12 (twenty nine thousand seven hundred and one rand, twelve cents) for an unknown property.

3.3.2.9                11 July 2014 - Grace Fobo R20 000.00 (twenty thousand rand), an estate agent who used to be in the employ of Grace Estates and letting, owned by MR an MRS Hewetson.

3.3.2.1O 18 August 2014 - Maree van Wyk inc R54 625.47 (fifty four thousand six hundred and twenty five rand, forty seven cents), as well as the amount of R32 389.91 (thirty two thousand three hundred and eighty nine rand, ninety one cents) on the same day. The payments appear to be with regard to one of Mr Hewetson's properties, but we will only be able to verify upon further investigation.

3.3.2.11           18 August 2014 - KGB Prop Management R5 745,60 (five thousand seven hundred and forty five rand, sixty cents), most probably for Mr Hewetson's own property. But we will only be able to verify upon further investigation.

3.3.2.12            8 September 2014 - Sheriff Welkom, a possible deposit for one of his properties an amount of R37 506.70 (thirty seven thousand five hundred and six rand, seventy cents).

3.3.2.13            18 September 2014 - Matjhabeng Municipality rates clearance certificate for fil VT0019  in the   amount   of R15 421.51 (fifteen thousand four hundred and twenty one rand, fifty one cents).

3.3.2.14          9 October 2014 - HCT van  Schalkwyk  in  the amount  of R10 000.00 (ten thousand rand), where the cash was apparently brought back to the office to AF Hewetson.

3.3.2.15          4 November 2014 - NF Molefi R6 000.00 (six thousand rand) an unknown person.

3.3.2.16          5 November 2014 - Sheriff Welkom RS 923.30 (eight thousand nine hundred and twenty three rand, thirty cents)

- This payment was made, without enough funds in the trust account, for an unknown reason.

3.3.2.17          19 November 2014 - Sheriff Welkom R45 006.70 (forty five thousand and six rand, seventy cents) and R39 006.70  (thirty nine thousand and six rand, seventy cents), these payments were likely made as the 10% deposits required when buying property at auction. With a  little more time I will be able to locate the exact files and property  involved.

3.3.2.18          5 December 2014 - Matjhabeng RCC D'Almeida R34 955.21 (thirty four thousand nine hundred  and  fifty five  rand, twenty one cents) - This property was bought on auction by Mr AF Hewetson, in his own name and these funds were unlawfully utilised for  this reason.

3.3.2.19          12 December 2014 - Matjhabeng Municipality R24 039.77 (twenty four thousand and thirty nine rand, seven cents) for an unknown reason.

3.3.2.20           12 December 2014 - NF Molefi R26 000.00 (twenty six thousand rand) an unknown  person.

3.3.2.21           12 December 2014 - TR Molefi R4 513.68 (four thousand five hundred and thirteen rand, sixty eight cents) an unknown person.

3.3.2.22         12 December 2014 - HCT van Schalkwyk in the amount of R10 000.00 (ten thousand rand), apparently the money was brought back to Mr Hewetson.

3.3.2.23         8 January 2015 - Sheriff Welkom, the amount of R54 006.70 (fifty four thousand and six rand, seventy cents) together with the amount of R51 006.70 (fifty one thousand and six rand, seventy cents) were only posted on the 9th January 2015, although the transaction were done on the 9th December 2014. This once again seems to be the 10% deposits necessary for properties bought at auction.

3.3.2.24           19 January 2015 - MR Mpe R4 799.50 (four thousand seven hundred and ninety nine rand, fifty cents), an unknown person.

3.3.2.25           5 February 2015 - MR Mpe R4 799.50 (four thousand seven hundred and ninety nine rand, fifty cents), an unknown person.

3.3.2.26           18 February 2015 - Sheriff Welkom R4 825.09 (four thousand eight hundred and twenty five  rand, nine cents),  an unknown reason.

3.3.2.27           20 February 2015 - Matjhabeng RCC R13 741.95 (thirteen thousand seven hundred and forty one rand, ninety five cents), for  an unknown reason.

3.3.2.28           24 February 2015 - Matjhabeng RCC R1 526.69 (one thousand five hundred and twenty six rand,  sixty nine cents), for an unknown  reason.

3.3.2.29           16 October 2015 - Matjhabeng Municipality R7 054.15 (seven thousand and fifty four rand, sixteen cents) for an unknown reason.

3.3.2.30          20 October 2015 - SARS RT0016 in the amount of R6 150.00 (six thousand one hundred and fifty rand) for an unknown reason."

These are in addition to those exposed in the affidavits of others and the audit report.

[11] According to the first respondent she was only dealing with human resources related matters in addition to her duties as an attorney. During the period 2011 to 2014 she was on extended maternity leave. On her return all her efforts to communicate with the second respondent since January 2014 were rebuffed by him. At all material times the second respondent was in control of the financial matters although she would in some occasions authorise an electronic funds transfer or sign a cheque. On realising that there was a shortfall in December 2015, she deactivated his access to the trust bank account and suspended him in January 2016.

[12] It is incumbent upon the directors and/or partners of the attorneys' practices to ensure that proper books of account are kept and that transactions are conducted in accordance with the rules of the applicant and Generally Accepted Accounting Principles. In the case of the third respondent that duty was squarely on the shoulders of the first and second respondents. It is the duty that reigns supreme over any family bonds or platonic relationships on those responsible to discharge it. They must do so with highest degree of good faith.

[13] In casu, the first respondent admits that she has always not observed the rules of the applicant by relinquishing her duties to the second respondent. She states that for a period of three  years between 2011 to 2014 she played no role in the administration of the third respondent despite remaining a co­ director. This is a long time by any standard. Even on her return she left all the responsibilities with the second respondents despite the rules of the applicant requiring of her to exercise care in dealing with the trust funds entrusted on her in her capacity as the director of the third respondent. It appears that the first respondent was content that her monthly living expenses were met from the coffers of the third respondent without paying even a lip service of the origin of such funds. It is inconceivable that an attorney will act in such a reckless manner. At best it is a dereliction of duty. It was under her watch that numerous acts of misconduct which were dishonest and fraudulent in nature were perpetrated.

[14] I agree with the submission of the counsel for the applicant that it was the duty of the first respondent to preserve the funds and contravention of this responsibility makes one guilty  of misconduct resulting in an appropriate sanction. I find it difficult to accept that she is innocent as she professes to be. The many transactions referred to in paragraph 3.3.2 of the affidavit of Mandie Janse van Ransburg (list is exhaustive) and the auditor's report are many and occurred over a lengthy period of time. During this time she also operated on the very same trust account by authorising some payments through electronic funds transfer or cheques.   This leads to the conclusion that she did not  rectify or take the necessary steps to remedy the situation. In my view, I find that she was also a party to the massive dishonest schemes perpetrated by the second respondent.

[15] In the Law Society of the Free State v Le Roux and others 2015 ZAFSHC 233 at paragraph 68 the full bench  of this  court per Molemela, JP stated the following:-

"I must hasten to add that even if I were to find that the first respondent was solely responsible for the management of the firm's financial affairs and was on that score solely responsible  for misappropriation of funds, the second and third respondent would still not be exonerated from a finding that they are not fit and proper to practice as an attorney, given the gravity of their misconduct. In my view, the fact that one of many directors is tasked with the financial management of the firm's  affairs does not in itself entitle the other directors to be ignorant about the financial position of the firm.

I align myself with the sentiments of the court in this regard. This lame excuse cannot avail the first respondent.

[16] In  this  matter  there  is  a  trust  deficit  of  approximately  R1 700

00.00. This has come about primarily by making payments from other files without justification. The defence of the first respondent is that she bore no knowledge of the actions of the second respondent until December 2015.

[17] It  appears that the  first and second respondents  were  having a torrid  time   with   each  other  culminating  in   a  bitter   divorce. Messages with accusations and profanities became the order of the day. On 19 November 2015 the first respondent sent the second respondent a WhatsApp4 message reading as follows:-

"Ek het  nou  finaal genoeg gehad van jou aanwending van trustgeld  vir persoonlike gewin...."

[18] This is a clear indication or admission that the first respondent was aware that the second respondent was abusing trust funds. She had been quiet about it and only became vocal when their marriage descended into an abyss of disagreements  and fights.  It cannot be correct that she only became aware in December 2015. On a previous occasion as per affidavit deposed to by Belinda Petzer, the first respondent was present when the funds  of one creditor namely Ahmed Nabil were used without justification. It is so that she does not state the full extent of that transaction like who was paid and the purpose thereof. The first respondent is alleged to have enquired as  to how  the  account was going to be purified. These incidents  are clear  indications that the first respondent condoned the actions of the second respondent and thus rendered herself equally culpable in the commission of the transgressions. Therefore, I am satisfied that the applicant has established on the preponderance of probabilities that the first respondent has committed acts of misconduct against its rules of practice.

[19] The next issue to be considered is whether the first respondent is a fit and proper person to continue to practice as an attorney.  On this aspect I am called upon to make a value judgement. Particularly to weigh the conduct of the second respondent in all the complaints against the conduct expected of an attorney.

[20] The trust deficit did not suddenly emerge without any underlying reason(s). It was preceded by a litany of transgressions occurring over a period of time. It is incorrect to shift the responsibility or blame to bookkeepers(s) or co-director(s). The oversight responsibility remains with the attorney concerned in accordance with the rules of the applicant. I find it remarkably irresponsible  for the first respondent to allege that her conduct is acceptable because there were bookkeepers paid to check if everything was in order and to expect her to check her books regularly was an impossible task. This is a clear indication of her concession that she was incapable of discharging her duties.

[21] The first respondent was willing to condone the conduct of the second respondent. Once it came to her attention that  the  second respondent was at fault with trust monies, she could not claim any innocence. She only reported him  to the  applicant when their marriage was in a downward spiral and the magnitude of the damage unmanageable. It was only after the departure of the second respondent when she started using the "fee books again and checked the fee books before the fees were posted." I am inclined to draw an inference that this was not the practice when he was actively involved in the affairs of the  third respondent. The first respondent is silent and does not divulge in her papers why she did not take any steps against the second respondent  when  he  refused  to  discuss  key  financial   issues involving the third respondent  with her.  Even then it  will appear that she was only dealing with the business side of the firm.

[22] I find that the first respondent is raising all these defences in an attempt to exonerate herself from any liability. However, she falls short and instead demonstrates that she does not appreciate duties imposed upon her thus rendering her not a fit and proper person to continue to practice as an attorney.

[23] In deciding the appropriate sanction, the court must consider the character of the attorney and the duty that the applicant carries to protect the public. See Law Society of  Good  Hope  v  Peter 2009 (2) SA 18 (SCA) at 23 G-H. However, on matters involving dishonesty, the attorney must demonstrate exceptional circumstances warranting suspension as against a strike off. See Malan and another  v Law Society, Northern Province   supra

[24] In this matter, I have alluded to the fact that the first respondent does not appreciate the full extent of her conduct and uses every available opportunity to escape any consequences. However, I note her co-operation with the applicant albeit at the terminal stage. She seemed to have allowed the conduct to permeate for  a long period of time and impressed on the second respondent to rectify it. She did not report it at once or  within  a responsible time. I take cognisance of the fact that the trust deficit which was misused to defray inter alia expenses amount to sizable sums of money. The second respondent could not have committed these acts  of  misconduct  without  her acquiescence.   In my view, this goes to the heart of her character and that the only appropriate sanction will be a strike-off.

[25] The last aspect to be considered is the issue of costs. The general rule is that the costs follow the event. The applicant is seeking an order that the first and second respondents jointly and severally be ordered to pay the cost of this application on an attorney and client scale. I have perused a number of judgements where the court has made orders to pay the costs on attorney and client scale. I am inclined to make such an order.

[26] I do so, because I take cognisance of the fact that the applicant is out of pocket using its own resources and protecting the interest of the members of the public. Conduct of the first and second respondents shows the contempt in which they discharged the duty placed on them. I find it aggravating the flippant manner in which the first respondent treated the applicant and did not give his co-operation. Equally so the flimsy and unconvincing defences advanced by the first respondent against overwhelming evidence detailing their mismanagement of the third respondent.

[27] In the result the following order against the first and second respondent is made:-

27.1        The first and second respondents' names are struck off the roll of attorneys of the Honourable Court. The first and second respondents are interdicted and restrained from  practicing  and/or   holding   themselves  out  as attorneys of this Honourable Court whilst their names are so struck from the roll.

27.2        That the first and second respondents surrender and deliver to the registrar of this court their certificates of enrolment as attorneys of this court.

27.3        That should the first and second respondents fail to comply with the provisions in paragraph 27.2 above of this order within two (2) weeks from date thereof, the sheriff of the district in which such certificates of enrolment is found, is empowered and directed to take possession thereof and deliver same to the Registrar of the Free State High Court, Bloemfontein, Republic of South-Africa.

27.4        That the first and second respondents are hereby removed from office as:

27.4.1      Executors of any estate in respect of which they had been appointed in terms of Section 51(1)(a)(v) of the Administration of Estate Act, Act 66 of 1965 or the estate of any person referred to in Section 72(1); and

27.4.2      Curators or guardians of any minor or other person's property in terms of Section 72(1), read with Section 54(1)(a)(v) and 85 of the Administration of Estate Act, Act 66 of 1965 or the estate of any person referred to in Section 72(1); and

27.4.3      Trustees of any insolvent estate in terms of Section 59 of the Insolvency Act, Act 24 of 1934; and

27.4.4      Liquidators of any company in terms of Section 379(2), read with Section 379€ of the Companies Act, Act 61 of 1973; and

27.4.5      Trustees of any trusts in terms of Section 20(1) of the Trust Property Control Act, Act 57 of 1988; and

27.4.6      Liquidators of any Close Corporation appointed in terms of Section 74 of the Close Corporation Act, Act 69 of 1984.

27.5        That the first and second respondents are hereby ordered to deliver their books of account, records, files and documents containing particulars and information relevant to:

27.5.1      any monies received, held or paid by the first and second respondent for or on account of any person;

27.5.2      any monies invested by the first and second  respondent  in  terms  of   Section 78(2) and/or Section 78(2)(A) of Act 53 of 1979 (“the Act”);

27.5.3      any interest in monies so invested, which was paid over or credited to the first or second respondents;

27.5.4      any estate of a deceased person, or any insolvent estate, or any estate under Curatorship of which the first or second respondents are the Executor, Trustee or Curator, or which the first or second respondent are administering on behalf of the Executor, Trustee or Curator of such estate; and

27.5.5      the first and second respondent's practice as an attorney.

to the Curator appointed in terms of paragraph 27.11 below, provided that  as far as such book of account, records, files and documents are concerned, the first and second respondents shall be entitled to have access to them, but always subject to the provisions of such Curator or  a  nominee of such Curator.

27.6        Should the first and second respondents fail to comply with such provisions of the preceding paragraph of this order within one (1) week after service thereof upon them, or after a return by a person entrusted with the service thereof that he has been unable  to  effect  service thereof on the first and second respondents, as the case may be, the sheriff of the district in which such books of account, records, files and document are, is empowered to take possession thereof and  deliver  them to such Curator.

27.7        Such Curator shall be entitled to hand over to the persons entitled thereto all such records, files and document as soon as he has satisfied himself that the fees and disbursements in connection therewith have been paid or satisfactory secured or that same are no longer required by the Curator.

27.8        A written undertaking by a person to whom the records, flies and documents referred to in paragraph 27. 7 above are handed, to pay such amount as may be due  to the first and second respondents,  either on  taxation or by agreement, shall be deemed to be satisfactory security for the purpose of the preceding  hereof, provided that such written undertaking incorporates a domicilium citandi et executandi of such person.

27.9        Such Curator is empowered to require that  any such file,  the  contents   of   which  he   may  consider   to  be relevant to a claim, or possible or anticipated claim, against him and/or the first respondent and/or the first respondent's clients, and/or the Attorneys Fidelity Fund (herein referred to as "the Fund") in respect of money and/or other property entrusted to the first respondent, be re-delivered to such Curator.

27.10 The first and second respondents is interdicted and prohibit from operation on directly or indirectly the practice's current trust account, account number [1...] (Nedbank) and also the trust account at Standard Bank, Theunissen, account number [0...] (hereinafter called ''the bank accounts").

27.11    The Chief Executive Officer, failing which,  the Executive Officer of the Applicant, is appointed as Curator to administer and control the trust account(s) of the first and second respondents, comprising of the separate banking accounts opened and kept by the first and second respondent at a bank in terms of Section 78(1) of the said Act and/or any separate savings or interest bearing account as contemplated by Section 78(2) and/or Section 78(2)(A) of the said Act, in which moneys from such trust banking accounts have been invested by virtue of the provisions of the said sub­ section or in which moneys in any manner have been deposited or credited (the said accounts being herein referred to as "The trust account(s)") with the following powers and duties:

27.11.1        Subject to the approval of the Board of Control of the Fund to sign and endorse cheques and/or withdrawal forms and generally to operate upon the Trust account(s), but only to such extent and/or for such purpose as may be necessary to bring to completion current transactions in which the first and second respondent were acting at the date of this order.

27.11.2       Subject to the approval of the Board of Control of the Fund to recover and receive and, if necessary in the interest of persons having lawful claims against the  Trust account(s)and/or against the first and or second respondents in respect of moneys held, received and/or invested by the first and second respondents in terms of the aforesaid Sections (hereinafter referred to as "Trust moneys"), to take    legal proceedings  which  may  be necessary  in respect of incomplete transactions in which the first and second respondents may have been involved and which may have been wrongfully   and  unlawfully  paid  from    the Trust account(s) and    to    receive such moneys and to pay same to the creditor of the Trust account(s).

27.11.3       To ascertain from the first and/or second respondents' book of account the names of all persons on whose account first and/or second respondent appears to hold or to have received Trust moneys (herein after referred to as ''the Trust Creditors") and to call upon first and/or second respondent to furnish him within thirty (30) days from the date of this order, or such further period as he may agree to in writing, with the names, addresses of and amounts due to all Trust Creditors.

27.11.4         To call upon such Trust Creditors to furnish such proof, information and 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  moneys in the Trust account(s) and if so,  the amount of such claim.

27.11.5        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 creditors,  without  prejudice  to  such Trust Creditors'   right   of   access  to   the   Civil Courts.

27.11.6        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.

27.11.7        In the event of there being any surplus in the Trust account(s) after payment of the admitted claims of all Trust Creditors in full, to utilize such surplus to settle or reduce,   as the case may be, firstly, any claim of the Fund in terms of Section 78(3) of the said Act in respect  of  any  interest referred to and secondly, without prejudice to the right of creditors of the first and/or second respondent, the costs, fees and expenses referred to in this order, or such portion thereof as has not already been separately paid by the first and/or second 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 to the approval of the Board of Control of the Fund, to the first and/or second respondent, if he is solvent, or if the first and/or second respondent is solvent to the trustee of his insolvent estate.

27.11.8       In the event of there being insufficient trust moneys in the Trust account(s) to pay the claims of Trust Creditors reflected in the books of account of the first and/or second respondent in full -

27.11.8.1               subject to the approval of the Board of Control of the Fund to close the Trust account(s) and pay the credit balances to the Fund and to require the credit balances to be placed to the credit of a special Trust suspense account in the name of the first and/or second respondents in the Fund's books;

27.11.8.2               to refer the claims of all Trust Creditors to the Board of Control of the Fund to be dealt with in terms of the provisions of the said Act, and

27.11.8.3              to authorize the Board of Control of the Fund to credit the credit balances referred to in sub-paragraph 27.11.8.1 above to its "Paid Claims Account" when the Fund has paid, in terms of Section 26 of the said Act admitted claims  of  the Trust  Creditors  in excess of such credit balances, provided that, notwithstanding the afore-going, the said Board shall be entitled in its discretion, to transfer to its "Paid Claims Account" the amount or amounts of any claim or claims as and when admitted and paid by it.

27.11.9                 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 engage to the services of attorneys and/or counsel and/or accountants and/or other persons, where considered necessary, to assist such Curator in the execution of the duties of the Curator, and

27.11.10                 To render from time to time, as Curator, returns to the Board of Control of the Fund, showing how the Trust account{s) have been dealt with, until such time as the Board notifies him that he may regard his duties as terminated.

27.12      The first and/or second respondent is hereby directed:

27.12.1                 to pay the fees and expenses of the Curator,  such  fees to be assessed  at therate    of  R710.00    per  hour,    including traveling time;

27.12.2                  to pay reasonable fees and expenses charged by any person consulted and/or engaged by the Curator as aforesaid;

27.12.3                  within one (1) year of him being requested to do so by the Curator, or within such  longer period as the Curator may agree to  in writing, to satisfy  the Curator  by means of the submission of taxed bills of cists, or otherwise, of the amount of the fees and disbursements due to the first  and/or second 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 have against the  Trust Creditors concerned for payment or recovery thereof.

27.13     The first and second respondents are jointly and severally ordered to pay the cost of this application on an attorney and client scale.

______________

MATHEBULA, J

I concur

______________

CHESIWE, AJ

On behalf of applicant: Adv. N. Snellenburg SC

Instructed by: Hill, McHardy & Herbst Inc.

On behalf of 1st respondent: Adv. S. J. Reinders

Instructed by: Symington & De Kok

On behalf of 2^nd respondent: No appearance

 

/r oosthuizen

 

---