04/03/2024
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A DISGRACED lawyer who embezzled more than R1-million from a trust fund, double-billed a client for work not done and defied a court order not to offer his services while he was suspended will no longer be able to practise law anywhere in South Africa.
Lebohang Micheal Mokheleβs licence was revoked after the Free State High Court gave the South African Legal Practice Council (LPC) the greenlight to strike him off the roll of legal practitioners.
He had been practising under the law firm incorporated in 2011 and named and styled as LM Mokhele Attorneys Inc, operating from 117 President Reitz Avenue in Westdene, Bloemfontein.
The LPC, which is mandated to provide for the admission and enrolment of legal practitioners and to regulate their conduct to ensure accountability, sought to de-register Mokhele following complaints lodged by two of his erstwhile clients, Xolile MacDonald Yawa and Mathabo Emily Tau.
The two independently reported the lawyer to the regulatory body regarding the manner he was executing his mandates in unrelated cases.
In the Yawa case lodged with the LPC on 30 August 2021, the complaint against Mokhele was initially against the manner in which he was dealing with instructions to file a petition in the Supreme Court of Appeal against a decision of the High Court not to grant leave to appeal in a deceased estate and customary marriage dispute.
Events however took a different turn when the LPCβs investigation committee got involved and discovered that the lawyer had made some withdrawals from the money deposited into his trust account, without having done any work in line with the mandate.
The probe found that Yawa had in December 2020 instructed Mokhele to file a petition to the Supreme Court of Appeal.
The lawyer invoiced him R165 000.00 for services allegedly rendered, yet nothing had been done at that stage.
Following an inquiry by Yawa, the amount was reduced to R45 000.00, which the client paid on 26 February 2021.
That deposit increased Mokheleβs trust account balance to R86 038.11.
On 27 February 2021, a transfer of R69 500.00 was made from the trust account with reference βFees February 15H00β to a beneficiary in a matter unrelated to Yawaβs case, bringing the balance to R2 189.91 and resulting in a trust deficit.
Yawa addressed several correspondences to the lawyer, which he failed to respond to.
The LPC was forced to lodge an application with the High Court, in relation to Yawa and two other matters, for an order to suspend Mokhele from practice as a precautionary measure pending a disciplinary hearing.
The court however dismissed the application after finding there was no factual basis to conclude that there was offending conduct, as the disciplinary hearings on this and two other matters were still pending.
Although the application was unsuccessful, the court expressed its displeasure at the manner the respondent was conducting himself.
The LPC subsequently instituted disciplinary proceedings in respect of the Yawa complaint consisting of eight charges of breaching the regulatorβs code of conduct.
The disciplinary hearing commenced on 25 October 2022 and concluded on 21 February 2023.
Once all the evidence including the respondentβs was heard, the disciplinary committee found Mokhele guilty of all the main charges against him and referred the matter to the LPC with the recommendation to file an application to strike him off the roll of legal practitioners.
In an unrelated matter, Tau had lodged her complaint with the LPC in July 2022 after Mokhele failed to account to her as to how funds deposited into her late husbandβs estate trust account were dealt with.
The lawyer had prepared and lodged two liquidation and distribution accounts with the Master of the High Court in the Free State, but failed to reflect an amount of R1 million received from FNB Life Insurance.
In response to Tauβs complaint, the LPC addressed a letter, dated 27 July 2022, for Mokheleβs attention, with the reply due by 26 August 2022.
He did not reply and also ignored a follow-up letter sent on 31 August 2022.
The LPC then instituted an investigation that uncovered unauthorised withdrawals of funds in various transactions totalling of over R1 million, but not paid to any of the estateβs creditors.
Mokhele had been appointed as executor of the estate of Tauβs deceased husband, Lehlohonolo Winston Tau, in April 2021.
He subsequently opened a bank account for the estate at Standard Bank.
The LPC investigation discovered that, during the period 28 May 2021 to 18 June 2021, a total amount of R1 131 710.29 was deposited into Tau trust account from FNB Life Insurance as follows:
β’ R89 160.00 on 28 May 2021;
β’ R42 550.29 on 29 May 2021; and
β’ R1 000 000.00 on 18 June 2021.
Subsequent to the deposits, various transfers totalling in the region of R1 million took place from that account to Mokheleβs account.
The transactions, conducted between 13 September 2021 and 31 January 2022, were referenced as loans.
The funds in the trust account were transferred without the consent of the Master of the High Court of the Free State nor the deceasedβs widow.
Tau, heir to the estate, flagged the liquidation and distribution account after she noticed that the amount R1 000 000.00 was not reflected therein and sought the intervention of Erna du Pisanie of the Masterβs Office.
Du Pisanie arranged a meeting during which Mokhele confirmed that the amount of R1 000 000.00 was omitted from the liquidation and distribution account and amended same prior to again filing it with the Masterβs Office on 12 September 2022, long after the last transfer had been made.
The investigation committee concluded that the lawyer had contravened provisions of the Legal Practice Act, as well the Administration of Estates Act, after he failed to account for funds received on behalf of the deceased estate, failed to respond to communication, failed to deal with Tauβs instruction and misappropriated trust monies.
In November 2022, the LPC filed an application with the High Court seeking an order to suspend Mokhele from practice pending an application to strike him from the roll of legal practitioners.
Mokhele however opposed the application and denied that funds had been transferred from the Tau estate account to his own business account.
He questioned the veracity of the bank statements and made a derogatory claim that the LPC had fabricated the statements.
On 23 November 2022, the High Court granted an interim order immediately suspending Mokhele from working as a lawyer pending an application to have his name struck from the roll of legal practitioners.
On 5 December 2022, he lodged an application for leave to appeal the interim order.
In the meantime, he addressed a letter to the LPC informing the regulator of his intention to continue practising as a legal practitioner, claiming his application for leave to appeal automatically suspended the order dated 23 November 2022.
In defiance of the court order, Mokhele continued to practise, as he appeared in the High Court on 6 December 2022 in the matter of S v Bakili, case number 38/2019, instead of appearing at his disciplinary hearing scheduled for the same time.
He again appeared in the same court on 20 January 2023 in the matter of S v Mokhesi and 17 others under case number 45/2021.
This prompted the LPC to launch an urgent application seeking that Mokhele be declared to be in contempt of court.
The lawyer however filed an opposing affidavit in which he maintained his stance that the interim order had been suspended by the filing of his application for leave to appeal.
The contempt application was heard on 6 March 2023, with the judgment handed down on 17 March 2023.
He was found guilty of contempt of the order and sentenced to imprisonment for a period of one month, wholly suspended on condition that he complied with the order.
The application for leave to appeal the interim order was set down for hearing on 24 March 2023.
But on the eve of the hearing, Mokhele filed a supplementary notice to the notice to appeal, citing new circumstances in favour of granting such an application.
He started singing in a different tune, as he indicated for the first time since the commencement of the matter that indeed all the transfers as stated in the affidavits filed in support of the LPCβs case had in fact been made from the Tau estate account.
He, however, stated that he had now repaid all the funds into the widowβs newly instructed attorneysβ trust account and therefore βthere is no more prejudice to or impoverishment on Mrs Tauβs partβ.
Mokhele then filed a further supplementary affidavit stating that Tau had been repaid in full on 10 January 2023, after they entered into a settlement agreement for her to withdraw the complaint.
According to the court, he gave an interesting explanation of how the funds were βerroneouslyβ transferred by one of his staff members, one Malik Van der Ross into his business account.
He submitted it exonerated him from misappropriating the late estate funds.
βThe transfer of such funds from estate account of the client was mistakenly done by the firmβs estate administrator in that he rendered under the mistaken impression that the monies belonging to the estate will be paid from business account, where the money will be ultimately deposited,β Mokhele claimed.
However, the court rejected his explanation, on the basis that it was βdevoid of the truthβ, since he had also failed to give reasons as to why payments were made prior to the finalisation of the administration of the estate and the Masterβs authorisation.
The LPCβs application seeking to have Mokhele struck off the roll of legal practitioners was heard before Acting Judge Vele on 7 September 2023.
βIt is common occurrence for errant attorneys that when investigated, they would rush to their clients almost seeking to silence them by paying them out of whatever source and then request them to withdraw the complaint,β the judge said.
βUnfortunately, by that time the horse would have already bolted. Trust money would have been misappropriated.
βA conduct that cannot be swept off the carpet by rushing to client, asking for apology and paying what was supposed to have been paid long ago.β
In a judgment handed down on 8 January this year, the court granted the order to remove him from the roll of legal practitioners of the High Court of South Africa.
He was directed to immediately surrender his certificate of admission and enrolment as a legal practitioner.
The court also prohibited Mokhele or any of his employees from operating and dealing with any of the trust banking accounts of the his practice, the banking accounts of any deceased estates in respect of which he had been appointed as executor or Masterβs representative and any banking accounts of any insolvent estates in respect of which he had been appointed as a liquidator.
βMisappropriation of trust funds is a very serious offence, which must be dealt with harshly,β Acting Judge Vele said.
βThe respondent was the sole director of the practice and wanted the court to believe that he had outsourced the financial aspect to an unqualified person.
βEven if it is for a moment accepted to be true, it constituted reckless conduct on his part, for which he fails to accept responsibility.
βThe applicant has proven that the respondent was not only reckless in managing his practice, but his conduct also fell short of the two crucial elements of being a fit and proper person to practice as an attorney, which are honesty and integrity.β β Staff Reporter
