- The High Court ruled that the Legal Practice Council was entitled to approach the court before concluding an internal disciplinary hearing. It relied on Section 44 of the Legal Practice Act and the court’s inherent powers, dismissing claims of procedural unfairness.
- The court found that Mmathari Mary Phogojane failed to submit audit reports, practised without a Fidelity Fund Certificate, and mishandled substantial trust funds, including amounts of R327 469.00 and R47 698.20 paid by clients.
- Finding that dishonesty and a lack of candour had been established on a balance of probabilities, the court ordered that Phogojane be struck from the roll and pay costs on an attorney-and-client scale.
The Legal Practice Council (LPC) has successfully secured a striking off order against attorney Mmathari Mary Phogojane after the High Court in Mahikeng found that her conduct in relation to trust funds and statutory compliance rendered her no longer fit and proper to practise.
In a judgment delivered by Acting Judge A Reddy, with Acting Judge T Masike concurring, the court held that Phogojane’s overall conduct demonstrated dishonesty, lack of oversight, and a failure to meet the ethical standards expected of legal practitioners.
Court rejects procedural fairness defence
Phogojane’s main defence was procedural. She argued that the application was premature because she had not been given a formal disciplinary hearing before the LPC.
The court rejected this argument in clear terms. Judge Reddy said the argument was “devoid of any merit” and emphasised that the absence of a concluded disciplinary enquiry does not prevent the High Court from hearing a striking off application.
Relying on Section 44 of the Legal Practice Act 28 of 2014, the court stressed that the Act does not limit the High Court’s inherent power to adjudicate on and make orders about the conduct of legal practitioners. The judgment confirmed that the LPC may approach the court directly where circumstances warrant it, even before an internal disciplinary hearing is finalised.
The court also reminded practitioners that, as set out in General Council of the Bar of South Africa v Geach, “absolute personal integrity and scrupulous honesty are demanded” of legal practitioners, and that generally a practitioner found to be dishonest should expect to be struck from the roll unless there are exceptional circumstances.
Practising without a Fidelity Fund Certificate
It was common cause that Phogojane failed to submit audit reports for multiple financial years as required by LPC rules. As a result, she was not issued a Fidelity Fund Certificate for the relevant periods.
Although she denied practising without a certificate, the court found that her own affidavit contradicted this position. She described herself as “a registered legal practitioner practising under the name and style of MM Phogojane Attorneys.” The court said any attempt to avoid this admission was disingenuous and held that having a Fidelity Fund Certificate was mandatory.
Quoting authority on the importance of a Fidelity Fund Certificate, the court reiterated that its purpose is to protect the public against financial loss arising from the misappropriation of trust funds. Practising without one posed a serious risk to members of the public who entrusted funds to her firm.
R327,469.00 trust complaint
The first trust complaint involved R327 469.00 received from client Reginah Ramasike Mahuma in connection with a deceased estate.
Phogojane admitted receiving the funds but blamed a colleague, Yandisi Jamjam Mahlangatha, claiming that Mahlangatha had withdrawn the money using the firm’s bank card and was later found not to be a qualified lawyer.
The court was not convinced. It noted that no primary evidence was provided regarding the alleged arrangement, the withdrawals, or the sharing of funds. Notably, Phogojane admitted in her affidavit, “I then believed her and she requested her share, and I gave her the business card to withdraw her share as agreed.”
The court found that there was no full disclosure about how the R327 469.00 was to be shared and no documentary proof of withdrawals. It concluded that Phogojane had shown “a pervasive lack of candour toward the court” and described her reliance on putting the LPC “to the proof thereof” as “simply dishonest.”
Emphasising the strict fiduciary duties attached to trust accounts, the court held that allowing another person to use a firm’s bank card to withdraw trust funds was legally impermissible and a serious professional breach. Legal practitioners have a personal, non-delegable duty to account for all client funds.
R47,698.20 divorce mandate complaint
The second complaint involved R47 698.20 paid by Naome Ester Mabyane for divorce proceedings. It was common cause that the funds were deposited into the trust account. Mabyane alleged that Phogojane failed to carry out her mandate and became evasive.
Phogojane admitted she had not accounted “faithfully, accurately, and timeously” for the funds but denied dishonesty, again blaming Mahlangatha.
The court was scathing, describing her as “nothing other than a recalcitrant litigant” and finding that she deliberately chose not to explain the substance of the complaint. Her reliance on an affidavit dealing with a different matter was found to be misplaced and irrelevant.
The court emphasised that it was her duty to make a full and frank disclosure of her accounting records. Her failure to do so, the court said, “speaks volumes.”
Not fit and proper
Turning to the second stage of the enquiry, the court examined whether Phogojane remained a fit and proper person to practise.
Quoting precedent, Judge Reddy noted that the legal profession is an honourable one that demands “complete honesty, reliability, and integrity.” The judgment stressed that the proper administration of justice depends on truthful facts being placed before courts and that practitioners must display “absolute personal integrity and scrupulous honesty.”
The court found that Phogojane’s conduct fell gravely short of these standards. It held that her failure to account accurately and timeously to trust creditors pointed “inevitably to misappropriation, which is a dishonest act and a far cry from negligence.”
Given her practising without a Fidelity Fund Certificate, mishandling of substantial trust funds, and lack of candour, the court concluded that she was no longer fit and proper to remain on the roll.
Striking off and punitive costs
When it came to sanction, Phogojane argued that suspension would suffice and cited personal and financial hardship. The court rejected this argument.
Relying on the authority that dishonesty ordinarily warrants removal from the roll, the court held that there were no exceptional circumstances justifying suspension. Financial hardship could not serve as a defence to misappropriating trust funds or failing to comply with statutory requirements.
The court ordered that her name be struck from the roll of legal practitioners, that she surrender her certificate of enrolment, that she be prohibited from operating her trust accounts, and that a curator bonis be appointed to administer her trust accounts. Her counterapplication was dismissed, and she was ordered to pay costs on an attorney-and-client scale.
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