KwaZulu-Natal Law Society OFFICE OF THE CHIEF EXECUTIVE OFFICER

Transcription

1 KwaZulu-Natal Law Society OFFICE OF THE CHIEF EXECUTIVE OFFICER YOUR REF : OUR REF : CEO 11/6/04 Please Quote Our Reference 8 July 2004 FIRST FLOOR, 200 BERG STREET P.O. BOX 1454 PIETERMARITZBURG 3200 FAX: (033) DX: 25 TELEPHONE: (033) info@lawsoc.co.za Website: CIRCULAR 06/2004 ALL PRACTISING MEMBERS OF THE SOCIETY Dear Member 1. THE PERFORMANCE OF WORK BY ATTORNEYS AND CANDIDATE ATTORNEYS WHO OPERATE AS EMPLOYEES OF THE JUSTICE CENTRES UNDER THE JURISDICTION OF THE LEGAL AID BOARD A representative group of your Council recently met with officials of the Legal Aid Board regarding the operation of the Justice Centres that have sprung up all over the Country. Your Council's delegation was advised that the Legal Aid Board have employed approximately attorneys and advocates countrywide to perform duties at their Justice Centres. A large number of attorneys and advocates who were in private practice have moved to the Centres and about 300 persons are serving community service at the Justice Centres which has the same status as articles of clerkship. Those "practising" at the Centres still function as officers of the Court and are ethically accountable for their conduct to the Law Society. Therefore the efficacy of the operation of the Justice Centres should be monitored by the Society. Various reports are received from time to time regarding the following:

2 CIRCULAR 6/2004 Page 2 (1) The quality of the service rendered by employees of the Justice Centres'. (2) The number of cases they are required to handle daily. (3) The delays caused when legal defenders are unable to consult with their clients beforehand because of the number of cases they are required to handle. (4) The fact that it is difficult for one Court of which the role has collapsed to draw cases from another Court because of the involvement of the legal defenders. Your Council does not know whether these reports are accurate and does not wish to act on rumours. What is required is empirical evidence of real situations experienced by our members who operate in the criminal courts. In this regard it must be pointed out that it is a well-known fact that only 10% of matters allocated by the Legal Aid Board and handled on their behalf are not criminal matters. These queries therefore refer essentially to criminal matters. However, there may also be problems in the family law courts or the civil courts. If you have evidence of problems experienced as a result of the actions or non-actions of attorneys or candidate attorneys in the employment of the Justice Centres your Council would be pleased if you could refer evidence of such events to the Society. All contributions received in this regard will be accumulated and discussed with representatives of the Legal Aid Board, which your Council intend to meet within the next month. It is therefore essential that whatever evidence you wish to submit should be referred to me as soon as possible.

3 CIRCULAR 6/2004 Page 3 Please note that your Council is not inviting complaints, but it needs to evaluate the work done by the Centres as your Council has a responsibility towards the public and towards the courts to ensure the quality of work performed by attorneys and candidate attorneys on behalf of the Centres is of acceptable standard. Ref. CEO 39/5/1 2. MAGISTRATES' COURTS: ISSUING OF WRITS AUTHORISING THE POLICE OFFICERS TO TAKE POSSESSION OF ATTORNEYS' TRUST ACCOUNT BOOK It has come to the Council's attention that the Police have on occasions called upon attorneys with warrants authorising them to take possession of the attorneys' trust accounting records, including bank statements, ledgers and paid cheques. In many of these instances the investigation by the Police concerned the activities of a client of the attorney. Attorneys are obliged in terms of Rules 20 and 21 to maintain proper accounting records of their trust transactions. The Council is concerned that if the Police took possession of these trust records, they could either get lost or the attorney would be unable to comply with the requirements of the Attorneys Act and the Rules in terms of which the attorney has to keep a proper set of books in which the trust transactions of the firm are recorded. In the circumstances the Council would like to suggest to members that when confronted with the Police, they should challenge the Police's authority to remove the records as there are alternatives

4 CIRCULAR 6/2004 Page 4 available to the Police. The Police could, for instance, take copies of the relevant documents or make an arrangement whereby they have free access to the books to facilitate their investigation into any criminal activities by the attorney's client. Members should also point out to the Police the liabilities they have in terms of Rules 20 and 21 and that these are indeed legal requirements. It is an offence for an attorney not to keep proper books of account of these trust transactions and by removing the books the Police may well make it impossible for the attorney to comply with the law. The Council is sending a delegation to the provincial Commissioner of the South African Police Service to request that they desist from taking the trust records of an attorney unless the attorney himself is accused of having fiddled with the trust money. Ref. CEO 46/8 3. SCHEDULE OF DISCIPLINARY ACTION ATTORNEYS FIDELITY FUND CERTIFICATES The following members failed to apply timeously or at all for 2004 Attorneys Fidelity Fund Certificates and were fined R2 000: Mr S Singh (Sanjay Singh & Associates) (Durban), Mr M S Nxumalo (Sipho H Nxumalo & Son) (Durban), Mr S P Du Toit (Attorneys Steve Du Toit) (Durban), Mr P K Pillay (Anand Pillay & Associates) (Pmb), Ms S Bissessor (Sharon Bissessor & Associates) (Durban), Mr M Mjokovana (M Mjokovana & Co) (Port Shepstone), Mr S N W Tshabalala ( N W Tshabalala) (Pmb), Ms N J Mashaba (Nze Mashaba

5 CIRCULAR 6/2004 Page 5 & Partners) (Durban), Mr N Govender (Navin Govender & Associates) (Durban), Mr E H Mall (Enver Mall) (Durban), Mr W S Kuboni (Kuboni & Shezi) (Durban), Ms K Moopen (K Moopen & Associates) (Durban), Mr L G Nkabinde (Lungisani Nkabinde) (Durban), Mr N P S Mnculwane (Nhlanhla Mnculwane Inc) (Durban), Mr T G Nkosi (Thulani Nkosi & Associates) (Isipingo), Mr L Padayachee (Logan Padayachee) (Durban), Ms D C Duma (D C Duma & Associates) (Durban), Mr R Padayachee (Padayachee & Partners) (Pmb) AUDIT REPORTS The following members failed to lodge timeously or at all their 2003 Audit Reports and were fined R2 000: Mr A Y S Mohideen (Attorney Ayob Mohideen) (Durban), Mr D C Pather (Attorneys Colin Pather) (Chatsworth), Ms I H Hassim (Ishana Hassim & Associates) (Pmb), Ms N J Mashaba (Nze Mashaba & Partners) (Durban), Mr P Z Zulu (Phinda Zulu & Partners) (Eshowe), Mr N Govender (Navin Govender & Associates) (Durban), Mr M A T Hulley (Hulley & Associates) (Durban), Mr P K Pillay (Anand Pillay & Associates) (Pmb), Ms J Moodley (Jane Moodley & Associates) (Durban), Mr M Mjokovana (M Mjokovana & Co) (Port Shepstone), Mr M E Mbhele (M E Mbhele & Co) (Pinetown), Mrs I Singh (Indira Singh & Associates) (Tongaat), Ms N C Ngubo (Ngubo & Co) (Pmb), Mr T G Nkosi (Thulani Nkosi & Associates) (Isipingo), Ms Y Govender (Yogis Govender & Associates) (Tongaat), Mr T S Pillay (T S Pillay & Co) (Durban), Mr N P S Mnculwane (Nhlanhla Mnculwane Inc) (Durban), Mr S N W Tshabalala (N W Tshabalala) (Pmb), Mr L Cross (Len Cross & Co) (Durban), Mr D S Zondi (B A Mbili & Co) (Pmb), Mr M E Ngcamu (H J Bhengu & Ngcamu) (Durban), Mr C B Mchunu (C B Mchunu & Partners) (Durban), Ms D S T Khuzwayo (Khuzwayo & Associates) (Durban), Mr J Naidoo (Jason Naidoo & Co) (Pmb) Mr S P Du Toit (Attorney Steve Du Toit) (Durban), Mr W S Kuboni (Kuboni & Shezi) (Durban), Mr G P Coetzer (A D Millar & Kimber) (Durban), Mr V M Mvambo & Mr H V B Makhanya (Makhanya & Mvambo) (Durban), Mr A B Debba (A Debba &

6 CIRCULAR 6/2004 Page 6 Associates) (Durban), Mrs A-D Bezuidenhout (Bezuidenhout & Partners), (Pinetown), Ms J Debba (June Debba & Associates) ( Durban), Mrs S Balakrishna (Balakrishna Naidoo & Partners) ( Phoenix), Mr D Vengtas (Daniel Vengtas & Associates) (Chatsworth), Mr E H Mall (Enver Mall Attorneys) (Durban), Mr M S Nxumalo (Sipho H Nxumalo & Son) (Durban) Ms M M Ngcobo (Ngcobo Mbali & Associates) (Durban), Mr L Padayachee (Logan Padaychee & Co) (Durban), Mr T C Kuzwayo (T C Kuzwayo Attorneys) (Newcastle), Mr R A Matubatuba (R A Matubatuba & Associates) (Matatiele), Mr M P Mkumbuzi & Mr X Binza (Mkumbuzi & Partners) (Durban). 3. Mr N P S Mnculwane (Nhlanhla Mnculwane Inc) (Durban) (C5/N.2058/02) Fined R4 000 for failing to attend properly and expeditiously to a client s motor vehicle accident damages claim and allowing the claim to prescribe. R2 000 of the fine was conditionally suspended for a period of 3 years. 4. Mr K Ramasir (Kissoon Ramasir & Associates) (Stanger) (C2/K.1135/02) Fined R Touting for third party work. 5. Mr M R F Manzi (Robinson Manzi & Co) (PMB) Mr Manzi s name was on 12/3/04 struck-off the roll of attorneys because of his conviction on a criminal charge of rape. 6. Mr G M L Peters (Pedersen Bartlett & Co) (Durban) (C2/P.0249/03) Fined R10 000,00 in that inter alia, in attending to a client s civil matters, he connived with an independent advocate so as to enable

7 CIRCULAR 6/2004 Page 7 the advocate to charge and receive fees directly from the client for the performance of work reserved for attorneys, he enabled the advocate to refer work to his firm in a manner which compromised the client s freedom to instruct an attorney of his choice, he failed to preserve his independence in the discharge of his professional duties, he withdrew as the attorney for his client without good cause, and having instructed the independent advocate to attend to his client s matters he had failed to ensure that the advocate properly fulfilled his mandate. R5 000,00 of the fine was suspended for a period of 3 years. 7. Mr J C Potgieter (Lister & Lister) (Pmb) Fined R10 000,00 for having debited certain clients trust ledger accounts with amounts of R114,00 and R150,00 and having credited his personal account therewith without first having passed fees in a proper way through the journal into the business account. Fined a further R5 000,00 for having debited certain clients trust ledger accounts with R150,00 each and having credited his personal account therewith and having thereafter paid the amounts to a particular firm of estate agents with the intention of rewarding the estate agent and such payments being calculated to solicit conveyancing work for him, alternatively, having offered financial inducements in order to influence the estate agent to refer conveyancing work to him. 8. Mr Z P Zulu (Phinda Zulu & Partners) (Eshowe) Fined R2 500,00 for failing to show respect to the Court in that he made adverse comments on the Court s judgment and for having walked out of Court whilst the Court was still in session. R1 500,00 of the fine was suspended for a period of 3 years.

8 CIRCULAR 6/2004 Page 8 4. EXPEDITED HEARINGS IN THE HIGH COURT The Rule applicable to expedited hearings has previously been published and you are referred to item 2 of Circular 3 of Expedited hearings in the High Court in Pietermaritzburg and Durban will commence on 2 August A Judge may already allocate a matter for an expedited hearing, but such matter will not be set down on a date before 1 August Ref. C.2238/ OPEN INVITATION TO ALL RAF STAKEHOLDERS The Acting Chairperson of the Board of the Road Accident Fund, Dr Saths Cooper and the Acting CEO, Mr Thokozani Magwaza have invited all the RAF stakeholders to Open Stakeholder Meetings to be held from 15 to 21 July 2004 at various venues throughout the country. The meeting in KZN will be held at the following RAF venue: 16 July 2004 Durban Venue: 19 th Floor, Durban Bay House, 333 Smith Street, Durban Tel: (031)

9 CIRCULAR 6/2004 Page 9 Time: 14h00 15h30 MISSION "To provide compensation to persons who have suffered loss or damage wrongfully caused by motor vehicle accidents in South Africa." VISION 'Road accident relief for all." Please RSVP the RAF by Tuesday, 13 July 2004 For more information contact Busi Mahlangu / Johannah Mahwayi Tel: (012) or (012) Fax: (012) busisiwem@raf.co.za or johannahm@raf.co.za Please do not contact this office about the meeting. We are acting as a messenger only. This Circular is issued on behalf of the Council. F.P. VAN DER MERWE CHIEF EXECUTIVE OFFICER