‘He stood to gain financial benefit’

MBABANE- “From the evidence presented, it would appear that the lawyer concocted an elaborate scheme to profit from this transaction.”

This was said by the Disciplinary Tribunal of the Law Society, in its judgment against Lawyer Machawe Dlamini, after finding him guilty of misconduct. He is said to have failed to pay a widow a sum of E380 000 after he had sold a farm on her behalf. The widow is Sara Tsabedze.

The tribunal observed that the idea of selling the property emanated from the respondent (lawyer) and that it was not too difficult to ascertain his motive for wanting the property sold.

“He stood to gain a healthy financial benefit. His devious scheme was to persuade the elderly illiterate lady to sell her property, insert an extortionist commission clause in the sale agreement, since he knew very well that due to her illiteracy, she would not pick it up,” reads part of the judgment delivered by the tribunal. It was further its finding that to compound matters, the respondent then kept the E1.5 million from 2016 to 2018 and refused to pay any interest on this amount.

Balance

“We have already pointed out that the E1 million paid in 2018 was paid under compulsion and the part of the balance paid in dribs and drabs. Ultimately, there is still a sum of E380 000 that is outstanding together with interest,” said the tribunal

It went on to state that the notion that the respondent had been practicing as an attorney from 2016 to date, with a Trust Account that was in deficit must surely militate against him. According to the tribunal, by his own admission, the lawyer’s trust account was still in deficit.

“He should not be practising under the circumstances. Theft of trust funds by legal practitioners is a very serious offence and far reaching consequences not only for the practitioner concerned but for the profession as a whole,” reads part of the judgment.

In its judgment, the tribunal highlighted that an attorney who dishonestly misappropriated trust funds was not a fit and proper person to continue practising as an attorney and deserved the ultimate sanction of strike off.

Recommendation

“In the absence of any mitigating factors and given that the respondent’s conduct was calculated and persistent, we make the following recommendation; that the Law Society takes appropriate steps to have the respondent struck off the roll of Legal Practitioners in accordance with Section 27 of the Legal Practitioners Act,” stated the tribunal. It ordered the lawyer to pay costs of the proceedings, which include the costs of the prosecutor, the costs of the recording and transcribing of materials presented at the hearing.

“The respondent’s conduct towards Tsabedze and the tribunal has been one of callousness bordering on contempt. His failure to file submissions and/or appear before the Tribunal on the designated date without excuse cannot be countenanced under any circumstances,” said the tribunal.

The tribunal added: “His admission that he is indebted to an elderly and frail widow but inexplicable failure to make good his indebtedness leaves us with no alternative but to conclude that he is a heartless individual.”