MISAPPROPRIATION OF CLIENTS’ FUNDS: ACTING MAGISTRATE FOUND GUILTY

MBABANE – Acting Magistrate Innocent Motsa faces potential disbarment after the Disciplinary Tribunal of the Law Society of Eswatini (LSE) found him guilty of misappropriating clients’ funds.

Motsa, formerly with Mkhwanazi Attorneys, came under scrutiny for his handling of the estate of the late Arthur Mpapane. As executor, Gugu Mpapane, one of the deceased’s daughters, enlisted the law firm’s services to wind up the estate. A key asset in the estate was a residential property at Sidwashini north. Despite an initial valuation of E29 000, Motsa reportedly obtained a second valuation of E175 000, citing the property’s deteriorating condition. When Mpapane expressed interest in purchasing the property herself, Motsa allegedly disregarded her offer and proceeded to sell the property to a third party for E170 000. The tribunal found that Motsa had exceeded his authority, as the power of attorney granted to him did not authorise him to sign a deed of sale.

Executor

Furthermore, Motsa’s failure to disclose the sale to the executor and other beneficiaries raised concerns about his ethical conduct. The tribunal deemed his actions as a serious breach of professional ethics and recommended disbarment. The verdict has significant implications for the legal profession in Eswatini and underscores the importance of maintaining the highest standards of integrity and accountability. “On account of his deceit in relation to the concealment to the family about the sale of the property; his non-disclosure of the details of the sale when confronted by the family members; his blatant dishonesty when requesting the advances from Ntshangase Attorneys; his failure to account for the proceeds of the sale to the beneficiaries; and his unremitting dishonesty when making submissions to the tribunal, have left us with no alternative but to conclude that the respondent is not a fit and proper person to practise as an attorney,” reads the disciplinary tribunal’s judgment.

The tribunal’s attention, according to the judgment, was also drawn to two other matters that pertain to Motsa. These matters are currently serving before the tribunal. In these matters, Motsa, states the judgment, has also admitted to having misappropriated monies belonging to clients.

Opportunity

In those matters, the tribunal accorded him the opportunity of settling his liability before dealing with the issue of misconduct. “He has failed to settle on both matters, and given the fact that he already admitted the wrongdoing, the tribunal considers it appropriate to take those matters into consideration when recommending a sanction for the present matter.” The first matter involves Penelope Magagula and Cashbuild. Motsa represented Magagula in the celebrated matter that ultimately was determined by the Supreme Court.  Magagula was successful and her employer was ordered by the court to pay her compensation, which came to a total of E345 980.

The employer was also ordered to pay costs, which amounted to E110 000. The costs were paid by Cashbuild’s attorneys and these amounts were paid to the respondent. The tribunal stated that Motsa requested that he be permitted to settle his indebtedness through monthly instalments.  “With the agreement of the company’s directors, a settlement agreement was concluded. The respondent has failed to honour the terms of the settlement agreement with a result that the complaint is back with the tribunal.

“A conspectus of the respondent’s conduct demonstrates a grave disregard of his duty as an attorney. The above matters are not issues of failure to account for monies but evince a pattern of theft of trust monies and a subsequent refusal to repay the monies,” further reads the judgment. The tribunal mentioned that Motsa had to be coerced to make some payments, which does not augur well for him. The Pietermaritzburg High Court made the statement, that where a person takes trust monies, knowing them to be trust monies and converts them for his own use, commits a theft.

Theft of trust funds by legal practitioners, according to the tribunal, is a very serious offence and far reaching consequences not only for the practitioner concerned but for the profession as a whole. “An attorney who dishonestly misappropriates trust funds is not a fit and proper person to continue practising as an attorney and deserves the ultimate sanction of being struck off the roll of attorneys in the Kingdom of Eswatini. “There is a need for the tribunal to protect members of the public such as the respondent. The repeated acts of misconduct are testament of the fact that he is a person who cannot be entrusted with the office of practising law.” The tribunal pointed out that the only equitable remedy in its considered view, is to have Motsa struck off the roll of attorneys as punishment for his transgressions.

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