Pretoria - A former attorney who dipped his fingers into his trust account and “loaned” the money - mostly payouts to which his clients were entitled - to a con artist is to lose his assets after a court ordered so in terms of the Prevention of Organised Crime Act.
In October, a lower court ordered that the State could confiscate the assets of Makome Malekane, who formerly practised in Burgersfort, Mpumalanga, after he was convicted of stealing R986 638 from his trust account. Magistrate MF Botha ordered he had to pay back R442 855 of the stolen amount to the State.
This money will, however, be paid over to the Law Society of SA, whose Fidelity Fund made payments to Malekane’s clients, who had been left destitute.
An earlier order was obtained which allowed for the confiscation of Malekane’s assets, including property and a car. These remained under the control of a curator.
Pretoria High Court Judge Bert Bam this week ordered the curator to now sell the assets, and other assets of the former attorney, to recover the amount of R442 855. The judge also ordered that if there was money left after all the expenses had been deducted and the law society had been paid, the remainder must be paid back to Malekane.
He was convicted of theft in March 2011 after he pleaded guilty.
Malekane could not account for the absence of the money from his trust account. But he explained that he took the bulk of the money from his trust account and lent it to a con artist, who disappeared with it.
After his conviction and before sentencing - which is yet to take place - the State asked that Malekane’s assets be confiscated so he could pay back the money he stole to the state in terms of the Prevention of Organised Crime Act.
The State argued that Malekane benefited from this unlawful activity as he took the money from his trust account and paid it as a loan to the con artist, who had disappeared with it.
Malekane argued that since he lost the money because the con artist went missing, he never benefited from this unlawful activity and thus his assets should not be confiscated or sold.
Magistrate Botha, in his judgment, said the fact that Malekane lost the money did not mean he had lost the benefit. “He still retains his right to claim back the money as this was a loan to the con artist.
“This man crooked him out of the money many years ago. It is 10 years later and he still has not found the crook or recovered the money.
“What are the chances that after so many years he will find the crook and recover his money? On a balance of probabilities it is almost naught,” the magistrate said.
In determining how much money should be forfeited, the magistrate said if he ordered that all the stolen money be forfeited, it would mean Malekane would lose his entire estate. He took into consideration that Malekane’s wife, whom he had married in community of property, should not lose her portion of the assets, and the debt owed to a bank. He concluded the amount to be forfeited was R442 855.
The magistrate also ordered the money should not go to the state, as it normally did in these cases, but directly to the law society that had reimbursed clients who lost money.
One of these is a Mr Maserumule, who won R750 000 in damages from the minister of police.
His lawyer at the time, Malekane, only gave him R14 739 and pocketed the rest. Maserumule and the attorney’s other clients complained to the law society.