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carmel-rickard
March 8 2012 at 10:58

The Free State is supposed to be the home of the “Boer maak ’n plan” approach to life; but sometimes, even in the Free State, that “plan” doesn’t quite work out.

A couple of years ago two attorneys from the province, struck from the roll, tried a way round the court’s order barring them from practising: they formed a CC and set themselves up as “providers of legal services” – but they charged at attorneys’ rates for work only attorneys may do.

The Free State Law Society discovered what they were up to and asked for judicial help to stop them.

As a result, Fusi Macheka and Molise Chabane were found in contempt of court and, on top of being struck off, they’ve now been given six-month suspended sentences and must pay costs.

The story begins in 2009 when the provincial law society brought an application for Chabane to be struck from the roll.

He had withdrawn almost R60 000 from the bank account of a deceased estate without the knowledge or approval of the executor. The funds were drawn for Chabane’s own use and weren’t paid back.

“The action… is considered to be theft,” the law society said, concluding he wasn’t a fit and proper person to be an attorney.

The high court in Bloemfontein agreed, and Chabane was immediately removed from the roll.

A year later he was joined in legal limbo by Macheka. I haven’t been able to trace judgment in the application for Macheka to be removed from the roll but it was, no doubt, because he, too, was found not to be a fit and proper person to practise as an attorney.

The two set up a CC once it became clear that they would be out of work, and in anticipation of the second striking off, they referred some of their clients’ files to the new outfit instead of handing them over to the law society as they were supposed to do.

Commenting on this move, the court produced a particularly noteworthy mixed metaphor: the attorneys “threw the proverbial javelin… before the lightning could strike”.

When the law society discovered the two were effectively continuing to practise as attorneys, it asked the court to bar them from providing any legal service to the public and requested that it find them in contempt.

The judges agreed the two had been in contempt of court, but instructed the law society to be more specific about what work the two may not undertake. That’s because, in the court’s view, there could well be some legal services that they could properly perform – after all, “not all legal services are reserved for attorneys”.

The case resumed some months after the contempt conviction once both sides had made written input about sentence.

Macheka said a caution and discharge would be appropriate in his case as he had undergone a “drastic moral and lifestyle change”.

He was a born-again Christian and chaired the men’s congregation of his church.

Chabane implored the court to consider his personal circumstances, including the fact that he was a useful member of society, that he had two small children and that he was now unemployed.

At the end of last month the court handed down sentence and made some strong statements about the dangers that could result when anyone, but particularly a lawyer, committed contempt of court.

The sentence reflected the court’s “disappointment” and the community’s disapproval of what the two had done, said the judges. It would also “vindicate the court’s honour” and “salvage its esteem” in the eyes of the public.

Moreover, it would keep the two former attorneys out of the “shameful pit into which their crimes have thrown them”, allowing them to “purge themselves” of the “professional revulsion” with which they were “most probably” regarded.

The judges added a warning that officials up to the very highest level should consider the judgment carefully, especially given the growing tendency to ignore court deadlines and orders.

Contempt of court was “essentially a manifestation of scornful rejection of the rule of law”, said the judges. “It generally makes a mockery of judicial authority. Left unchecked it has the potential to promote anarchy. In its worst form it is to judicial authority what sedition is to the authority of the government of a state.”

http://carmelrickard.posterous.com

 

 

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