LAW IN THE DOCK
A claim for reimbursement from the Legal Practitioners Fidelity Fund for a property deal gone wrong puts a spotlight on the recently expanded role of advocates
Anyone who has bought real estate will know the feeling: Onolio Rabalao saw an advert, was shown the property by an agent, and decided it was the one for her.
The woman who accompanied the agent at that visit, Dora Rambau, said she was a lawyer and that she was working with an advocate, Abram Moela. If Rabalao wanted the place, said Rambau, she and Moela would ensure transfer into her name as soon as the purchase price of R160,000 plus transfer and registration costs were paid.
Rabalao signed the offer to purchase and paid the required amount into Moela’s trust account. But when neither transfer nor registration took place, Rabalao lodged a claim with the Legal Practitioners Fidelity Fund to recover her money.
Questioned by the fund, Moela said he’d transferred the money to the realtor, which had “scammed” him.
The fund dismissed Rabalao’s claim, saying it didn’t comply with the Legal Practice Act as the money wasn’t given “in trust to a trust account practice in the course of the [advocate’s] practice”. Whether this was correct would become the central issue of the case.
When Rabalao, representing herself, applied for the high court to reconsider the fund’s decision, judge Elmarie van der Schyff asked the General Council of the Bar to act as a friend of the court, giving input and legal argument on the issues raised.
At first thought, the fund might seem to have a point in questioning whether the money was received by Moela “in the course of his practice as a trust account advocate”. Rabalao put money into Moela’s account so he could transfer the property into her name. Clearly, however, Moela wouldn’t do that himself in the course of his practice — it is a conveyancer’s task.
Did that absolve the fund from the claim, given that all parties agreed that Rabalao had put the money into the advocate’s trust account, and that he had a fidelity fund certificate at the time she did so?
Rethinking the law
Van der Schyff’s judgment on Rabalao’s plight should remind the public and lawyers of the reasoning behind recent changes to the law governing the legal profession.
The bill of rights says everyone has the right to have a dispute decided in a fair public hearing before a court. This means the state must try to eliminate obstructions that could hamper access to justice, particularly for “the poor, illiterate and indigent”.
Changes to the structure of the legal profession aim to do just that: because it adds to legal costs to have an attorney brief counsel — thus involving two legal professionals in a matter — the law now allows advocates to take legal work from the public directly, without an attorney as intermediary. The caveat is that the advocate concerned must have a trust fund with the associated certificate, and the work must not be exclusively that of an attorney.
There’s a long list of legal work a “trust fund advocate” may undertake, and the law specifically states there is “no closed list” of such legal tasks. But the overarching purpose of this change is to make it easier for the public to access the legal profession — and justice.
In this particular case, Rabalao had paid money to Moela, not because he was a friend or for investment, but to deal with the property transfer. The judge found that when trust fund advocates are asked by clients to negotiate or advise them about a property sale, one of their functions would be to receive the purchase price and associated fees into their trust accounts. That was the case for Moela; he received the money “in the course of his practice” as a trust fund advocate.
The judge, therefore, set aside the decision not to allow the claim against the fund and referred the matter back to the fund’s board for reconsideration.