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LAWYER, CLIENT JAILED FOR FAILING TO REPAY E221K

27/03/2023 08:24:00 Mbongiseni Ndzimandze

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MBABANE – The High Court has directed the detention of a lawyer and his client for failure to pay back over E221 000, despite an order directing them to do so.

Judge Titus Mlangeni ordered that lawyer Sabelo Phiri should be sent to jail for 90 days while his client be committed to gaol for a period of 60 days. This was after he found that the duo was in contempt of court, after having failed to pay back a sum E221 500.50. The money was paid to the lawyer and the company of his client, Averil Projects (PTY) Limited, after the former obtained an order against Phakama Mafucula (PTY) Limited, through perverting the facts of the matter. The lawyer approached the court seeking an order directing Phakama Mafucula (PTY) Limited to pay damages incurred by Averil Projects (PTY) Limited in procuring working material for a project in the sum of E221 340.50.

During the hearing of the matter, the court put it to Phiri that damages could not be claimed through motion proceedings. At that stage Phiri then submitted that the claim was actually for a refund of money that was paid to the applicant as deposit for the project, which did not take off. He further submitted that the prayer, as it was presented was inaccurate and proceeded to amend the prayer to reflect ‘refund’. The court said it was of significance to note that in the application for payment, the deponent averred that it was paid to a third party, New Solar Systems (PTY) Limited and that it was not refundable if the sale was cancelled, as in the present case.

Judge Mlangeni said this showed that Phiri deliberately set out to mislead the court whereas he knew that his client had paid to a third party, he still sought the ‘refund’ from the applicant.
The court stated that it was clear at best that his (Phiri) client’s claim against the applicant was based on breach of contract and in the nature of things could either be for specific performance or damages. Judge Mlangeni said, it was on the basis of Phiri’s improvisation and deceit that he granted the order.

Stolen

“Now that I know what I know, I have no doubt that the order was stolen, and this explains why Mr Phiri moved at a blistering pace to have execution done and proceeded to execute even as an application for rescission was pending in court and being pursued actively. So it is that the craddle of this matter is consistent with many things that were subsequently done by Phiri. It is no accident that Phiri perverted the facts in the manner that he did,” said Judge Mlangeni. The court noted that once Phiri laid his hands on the money, there was no going back. Judge Mlangeni also highlighted that soon as the money was in his (Phiri) Trust Account, he instantly transferred it to his client’s account, on the same day, less his fees.

Phiri, according to the court, thereafter ‘abandoned’ his client and simulated helplessness. The court observed that nowhere did Phiri allege that he engaged his client and did not get co-operation. “Having become aware of the order to return the money, he did nothing to engage his client on the matter and thereby suggesting, unavoidably, that they were on the same page or wavelength. The director of the first respondent (Averil Projects (PTY) Limited), Maxwell Migueritte, was personally served with the order. Since then he has done nothing to bring up his side of the story and certainly nothing to disclaim knowledge of what has unfolded in the matter, not even to say that the money has been used, or part thereof, in one way or another. This demonstrates, once again, that him and Mr Phiri are of the same mind on what has transpired. I see no better example of contempt, joint and several,” said Judge Mlangeni.

Fiasco

The court said clearly, the mastermind of this fiasco was Phiri, and his client had been happy to enjoy the fruits of its attorney’s perverse conduct. “Their blameworthiness, therefore, cannot be to the same degree. But they have, in very similar ways, demonstrated that they are ready for anything that comes as a consequence of the unpleasant events of this matter,” said Judge Mlangeni. He found that the respondents (Phiri and his client) were both in contempt of court of the order granted on December 9, 2022. Judge Mlangeni further highlighted that it was of significance that the respondents had made absolutely no attempt to tell the court why they were not returning the money, not even that it had been used in one way or the other.
“There can be no better example of willful default,” said the court. The court pointed out that, the specific undertaking by Phiri, in open court, was ‘to pay the attached sum of money back to the banking account of the interlocutory applicant without undue delay’.

“It is needless to point out that the assertion by Phiri that the money was in his Trust account, and his undertaking to pay it back, obviated the need for an order for stay of execution at that stage. Traditionally, a lawyer’s word is pure and ineffaceable; a fortiori, one that is given in court. After all the legal profession is known as a noble profession,” said the court. Judge Mlangeni also stated that, on one rare occasion, he heard a civil matter in motion court without having read the papers in advance. He said the reason for this was for another day.
“Mr Sabelo Phiri opportunistically took full advantage of this. Sadly, the culmination of subsequent events is that him and his erstwhile client’s director will, in terms of this judgment, become guests of His Majesty’s Correctional facility,” said the judge.

Judge Mlangeni further mentioned that the period of committal was in the discretion of the court, taking into account all the circumstances of the matter. “I do, as I should, take a dim view of a contemner who is an officer of the court and says it himself. On the basis of the aforegoing I make the following orders: - The first respondent’s director, Maxwell Migueritte, is hereby committed to gaol for a period of 60 days or for such shorter period as he may pay to the applicant the amount of E221, 500.50.The second respondent, Sabelo Phiri, is hereby committed to gaol for a period of 90 days or such shorter period as he may pay to the applicant the amount of E221 500.50.” The court ordered the respondents to pay costs of this application at the scale of attorney and own client, jointly and/or severally, the one paying the other one to be absolved. The applicant (Phakama Mafucula PTY (Limited) was presented by Mzwandile Sobandla Dlamini while for the first respondent was Methula.