A legal Practitioner may be prosecuted for theft of property or trust money

01 June 2023 ,  Puleng Valentine Tladi 241

According to John Ndlovu a senior Legal Adviser at Prosecutions unit of the Legal Practitioner’s Fidelity Fund[1] The complainant or the Legal Practice Council as the regulator may open a criminal case against a legal practitioner for the theft of property or trust money.

  1. Section 63(1)(i) of the Legal Practice Act 28 of 2014 allows the board of the Legal Practitioners’ Fidelity Fund to institute prosecution for misappropriation or theft of property or trust money.
  2. In Peffer v The State[2], the appellant appealed against his sentence which was imposed by the specialised commercial crimes court, in Port Elizabeth, where the appellant was convicted of stealing trust trust money in the total amount of R 215 776-00(two hundred and fifteen thousand seven hundred and seventy six rand).

         When delivering his judgement[3], the Honourable Judge Froneman stated the following:

    “It was also submitted that the magistrate erred in her conclusion that no form of correctional supervision was a suitable sentence option. I do not agree. The appellant has been convicted of a very serious offence. His conduct, over an extended period of time, has done irretrievable harm to the profession he practiced (S v VORSTER 2007(2) SA CR 283) Persons in similar and perhaps even much more deserving circumstances, have been held not to be suitable persons for correctional supervision. (Compare S v ELLIOT 1996(2) SACR 531 (E). The sentence imposed is also not in my view shockingly in appropriate or disproportionate”.

  3. In another unreported matter, an attorney from Durban was convicted for misappropriation of trust funds received by her as a sole practitioner with the intention of permanently depriving her clients of their money in a conveyancing matter. [4]The accused in this matter was convicted and sentenced to six years imprisonment (wholly suspended for five years) by the Durban Regional Court.

 

According to Ndlovu[5], and I quote, “The court emphasised its disapproval of the lenient sentence imposed by the court a quo by referring to S v Brown [2015] 1 All SA 452 (SCA) at 121, where the court said the following: ‘In my view, the sentence imposed by the court … tends toward bringing the administration of justice into disrepute. Less privileged people who were convicted of theft of items of minimal value have had custodial sentences imposed. We must guard against creating the impression that there are two streams of justice; one for the rich and one for the poor”.

We should all be reminded that no man is above the law and everyone, whatever his position or rank, is subject to the ordinary laws of the land.

 



[1] https://www.derebus.org.za/theft-of-trust-money-by-legal-practitioners-the-consequences

[2] Case number CA & R 206/07

[3] Paragraph 14 of his judgment

[4] Jayshree Baijnath v State (KZP) (unreported case no AR320/18, 11-12-2020)

[5] https://www.derebus.org.za/theft-of-trust-money-by-legal-practitioners-the-consequences

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