The Legal Practice Council (LPC) has succeeded in having a North West attorney struck off the roll of legal practitioners following findings of serious trust account breaches, dishonesty and practising without a Fidelity Fund Certificate (FFC).
The North West High Court in Mahikeng ordered that Mmathari Mary Phogojane’s name be removed from the roll, finding she was no longer a “fit and proper” person to practise as an attorney. The court also appointed a curator to take control of her trust accounts and ordered her to pay costs on the punitive attorney-and-client scale.
Phogojane opposed the application, arguing that the LPC had acted prematurely by approaching the court before completing a formal disciplinary hearing. She claimed this violated her right to procedural fairness.
The court rejected this argument, holding that under section 44 of the Legal Practice Act, the high court retains inherent authority to discipline practitioners. It found that the LPC was entitled to approach the court directly where serious misconduct was alleged, particularly involving trust funds.
Her counterapplication was dismissed.
The court found that Phogojane failed to submit required audit reports for several financial periods, resulting in her not being issued with an FFC for 2022 and 2023. Despite this, she continued to practise.
The judgment emphasised that possession of a valid FFC is mandatory for attorneys practising for their own account, as it protects the public against losses caused by misappropriation of trust funds.
The court concluded that she had practised unlawfully without the required certification.
A central issue was a complaint involving over R327,000 paid by a client, Reginah Ramasike-Mahuma, for the administration of a deceased estate.
Phogojane admitted receiving the funds but claimed a colleague had withdrawn the money and defrauded both her and the client. She said she later discovered the colleague was not a qualified lawyer and had allegedly defrauded others.
However, the court found her explanation lacking in candour. It noted there was no proper accounting of how the funds were handled, no clear evidence of withdrawals, and no satisfactory documentation. The court held that permitting another person to access or withdraw trust funds constituted a serious breach of fiduciary duties.
Even if she had not personally stolen the money, the court found that gross negligence and failure to exercise proper oversight over the trust account amounted to serious professional misconduct.
In a separate complaint, a client, Naome Ester Mabyane, deposited over R47,000 for divorce proceedings. The court found that Phogojane failed to properly account for the funds and did not adequately execute her mandate.
Although she denied dishonesty, she admitted that she had not accounted faithfully and timeously for the funds. The court found her responses evasive and lacking full disclosure.
Applying the well-established three-stage test for striking off applications, the court found that the misconduct was proven on a balance of probabilities, her conduct demonstrated dishonesty and a lack of integrity. Moreover, removal from the roll — rather than suspension — was the appropriate sanction.
The court stressed that trust money must be handled with “absolute personal integrity and scrupulous honesty,” and that misappropriation or failure to properly account for client funds is generally incompatible with continued practice.
It rejected her plea for suspension and reliance on personal financial hardship, stating that financial difficulties cannot justify breaches of statutory and fiduciary duties.
In addition to striking her from the roll, the court:
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Ordered her to surrender her certificate of enrolment.
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Prohibited her from operating on her trust accounts.
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Appointed the LPC’s director (or nominee) to administer and control her trust accounts.
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Directed her to pay costs on the attorney-and-client scale.
sinenhlanhla.masilela@iol.co.za
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