Times Of Swaziland: LAWYER FOUND GUILTY, MUST PAY WIDOW E380 000, FACES AXE

LAWYER FOUND GUILTY, MUST PAY WIDOW E380 000, FACES AXE
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Times Reporters on 14/04/2023 11:18:00


MBABANE – The Disciplinary Tribunal of the Law Society has ordered  Lawyer
Machawe Dlamini to pay an elderly widow a sum of E380 000.
This was after it found him guilty of misconduct. The tribunal did not only
direct the lawyer to pay Sara Tsabedze (born Nxumalo) but it further recommended
to the Law Society of Swaziland (LSS) to take appropriate steps to remove him
from the roll of practising lawyers . The judgment comes after the aggrieved
woman approached the law society, which then remitted the matter to the
tribunal. The lawyer is said to have failed to remit the money after selling a
farm on behalf of Tsabedze.
According to Tsabedze, the respondent (lawyer) failed to account to her in the
sum of E370 000. The respondent on the other hand contended that the amount
outstanding was the sum of E112 234.28. There was an explanation proffered by
the respondent for the discrepancy. He contended that he was entitled to the
estate agent 15 per cent commission (which he had already deducted) and in
addition that he was also entitled to the legal fees for services rendered.
Inherited
Originally, the property was owned by Tsabedze’s husband and she inherited it
upon his demise. It transpired that at some point, she entered into an agreement
with one Frans Du Pont, which was styled a Caretaker Agreement. Senior Lawyer
Zweli Jele, who headed the tribunal, heard that Du Pont occupied the property
but for some reason or another, was reportedly not paying any form of rental or
compensation to Tsabedze. Dissatisfied with this arrangement, Tsabedze
approached Machawe with an instruction that he should evict Du Pont from the
property.
In its judgment, the tribunal said the respondent (Machawe) did not carry out
this instruction but instead gave advice to the elderly illiterate woman that it
would be in her best interests if she agreed to sell the property. Tsabedze is
said to have reluctantly agreed to the sale of the property on condition that
the respondent obtained a valuation of the farm. The respondent is said to have
secured a valuation of the farm at E2.4 million.
“We requested from the respondent a copy of the valuation but it was not
forthcoming. The respondent secured a purchaser in the name of MA Ranches, who
purchased the property for a sum of E1 500 000 in 2016. No explanation was given
as to why a property that was supposedly valued at E2.4m was sold for a paltry
E1.5m. Even more disconcerting was the revelation by Tsabedze that she
subsequently had an evaluation undertaken and the property was valued at E4.2
million,” said the tribunal. During the hearing, Tsabedze revealed that
sometime after the sale transaction had been concluded and when she was
desperate for money due to exigencies, she approached MA Ranches director and
pleaded her case and he gratuitously agreed to pay her an additional E500 000.
The tribunal stated that, on the admitted facts and without seeking to determine
at this stage the amount owed by the respondent, it was satisfied that a case of
misconduct had been made out against him (respondent).
Dishonesty
“The act of failing to account to a trust creditor cannot be countenanced
under any circumstance. A failure by an attorney to account for trust funds when
they become due constitutes dishonesty and invariably leads to the inevitable
conclusion that an attorney who is guilty of such conduct is in fact guilty of
theft,” reads part of the judgment. The tribunal said lawyers were not
permitted to utilise trust monies for any purposes other than the designated
one.
It was further its observation that the mere fact that the matter required the
intervention of the attorney general (AG) before the respondent could remit the
El million and that subsequent to that he embarked upon a persistent and
belligerent refusal to account to an elderly widow, was itself repugnant to the
due and faithful discharge of his mandate as an attorney. “In fact, the
utilisation of the trust funds to pay another creditor (whatever the
circumstances) constitutes theft on the part of the respondent. The fact that he
has repaid some of the money does not mean that the misconduct has been
corrected or even ameliorated. It is telling that the repayments were made under
duress. He has never voluntarily accounted to Tsabedze. We, therefore, find that
the respondent is guilty of misconduct,” said the tribunal.
Assist
The tribunal said attorneys were not businesspeople but professionals and as
such, had a duty to assist their clients while simultaneously promoting justice.
 It further highlighted that business principles which were money profit driven
had no place in the practice of the law. “The generally held view that there
is ‘no profession that offers a surer path to affluence and influence’
should not be a licence for attorneys to act unscrupulously and to the detriment
of their clients,” said the tribunal.
The tribunal said, without seeking to rewrite the contract between the parties,
it took the view that the commission of 15 per cent was excessive and in light
of the facts set out above, it concluded that the respondent was not entitled to
15 per cent but at the very least, would have been entitled to a commission of
five per cent. It was further its finding that a conspectus of the conduct of
the respondent demonstrated a grave disregard of his duty as an attorney. It
further mentioned that this was not a case of simple failure to account but
evinced a theft of trust monies and subsequent refusal to repay the monies.
According to the tribunal, the fact that the respondent had to be coerced to
make payments did not augur well for him.