The North Gauteng High Court in Pretoria has struck advocate and former High Court registrar off the roll of practising legal practitioners after finding that his conduct involving fraudulent and invalid court orders and tax bills demonstrated a serious lack of honesty and integrity.
Acting Judge T Ngeno together with Judge J S Nyathi, handed down the judgment in an application brought by the South African Legal Practice Council (LPC) to have Banathi Olwethu Masoka removed from the roll.
Misconduct as court registrar
Masoka was admitted as an advocate in February 2011 and later worked as a registrar at the Johannesburg High Court before being transferred to the Pretoria High Court.
While employed by the Office of the Chief Justice, he faced eight disciplinary charges, including gross dereliction of duty, breach of fiduciary duties, gross negligence and dishonesty.
The charges centred on the issuing of several alleged fraudulent or invalid court orders and tax bills involving legal firms Moalo Incorporated and Hammond Pole Attorneys. Many of the matters concerned Road Accident Fund claims.
The court heard that the default judgments had not been enrolled on the dates appearing on them. Masoka’s allocated court stamp was used on the disputed orders and his signature appeared on them.
Despite an investigation into his conduct, Masoka allegedly continued issuing fraudulent court orders, including a divorce order, and endorsing taxation bills in breach of a practice directive issued by the Judge President.
Fake divorce order
One of the most serious incidents involved a purported divorce order relating to a man identified in the judgment as Mr Skosana.
Skosana discovered that he was apparently divorced when he approached the Department of Home Affairs to obtain his marriage certificate. When he investigated further, officials at the High Court and Regional Courts told him that no case existed under the relevant case number.
He later obtained a copy of the divorce order from the Government Employees Pension Fund. However, the High Court file carrying that case number actually related to an entirely different matter involving Ntuli and Prasa.
The investigation established that the disputed divorce order had been issued on Sunday, May 29, 2023. It purported to have been issued under the authority of Hiemstra AJ, who was not even presiding at the time.
An investigator testified that Masoka confirmed that he had issued the order and that the signature appearing on it was his.
Fraudulent RAF billsÂ
The judgment says several fraudulent or invalid default judgments and tax bills were issued in relation to certain law firms, including Moalo Incorporated and Hammond Pole Attorneys. Most of the fraudulent orders related to Road Accident Fund matters.
Some of the tax bills were falsely presented as legitimate. During the disciplinary proceedings, it emerged that some bills of costs taxed by Masoka were presented as having been agreed, even though there had been no such agreements.
The RAF challenged the fraudulent bills. Once the RAF discovered that some of the tax bills were fraudulent, it successfully brought rescission applications. This substantially reduced the amounts that would otherwise have been payable under those bills.
A RAF official testified that, had the unlawful taxed bills not been rescinded, their impact on the RAF would have exceeded R10 million.
The disciplinary proceedings also found that Masoka had dealt with matters that had not been allocated to him, including default judgments previously refused by other registrars.
Masoka resigned but disciplinary hearing continued
Masoka attempted to resign from his position shortly before his disciplinary hearing, tendering his immediate resignation in May 2023.
The office of the Chief Justice refused to accept the immediate resignation and required him to serve the notice period stipulated in his employment contract.
He subsequently attended the disciplinary hearing but later withdrew from the proceedings, arguing that the process was unfair and that his representative had been treated harshly by the chairperson.
The hearing continued in his absence.
The chairperson ultimately found him guilty on seven of the eight charges and he was dismissed.
Defence rejected
Masoka opposed the LPC’s application and argued, among other things, that the disciplinary proceedings had not been fair.
He also argued that the South African Police Service had decided not to pursue a criminal prosecution, which he said indicated that the allegations and disciplinary findings against him lacked merit.
The High Court rejected these arguments.
The judges found that Masoka had been given an opportunity to participate in the disciplinary hearing but had chosen to abandon it. As a result, he could not later complain that his version had not been tested.
The court said the disciplinary findings had not been set aside and were therefore binding for purposes of determining his fitness to practise.
Gross conduct
The court said the misconduct was particularly serious because it had occurred within the court environment and involved a legal practitioner who owed a duty to the court and the legal system.
The judges found that Masoka had not merely issued fraudulent court orders but had created the impression that at least one of them had been authorised by a judge.
The court described this as a calculated attempt to deceive members of the public and people against whom the orders were issued.
“The conduct of the respondent is very serious in that it also involves dishonesty,” the court found, concluding that it demonstrated a character defect and lack of integrity that rendered him unfit to practise.
Struck off and ordered to pay costs
The court applied the established three-stage test for determining whether a legal practitioner is fit and proper to practise, considering whether the misconduct was established, whether the practitioner was fit and proper, and whether striking off or suspension was the appropriate sanction.
It concluded that Masoka had failed to demonstrate the honesty, reliability and integrity expected of a legal practitioner.
His name was therefore struck from the roll of legal practitioners.
He was ordered to immediately hand over his certificate of enrolment to the Registrar of the High Court. The court also removed him from various positions, including executor, curator or guardian, trustee, liquidator and administrator.
Because of the seriousness of his misconduct, the court further ordered Masoka to pay the LPC’s costs on an attorney-and-client scale.
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Sinenhlanhla Masilela
iol.co.za
