7 June 2023
Johannesburg High Court judges Motsomai Makume and Willem Wepener have disbarred a dishonest advocate.
A Johannesburg advocate, who defrauded the State Attorney out of more than R34-million – effectively earning almost R67,000 a day for 511 calendar days – has been disbarred.
In a ruling handed down this week, Johannesburg High Court judges Motsomai Makume and Willem Wepener said Hassan Ebrahim Kajee’s conduct “exhibited serious flaws”, he had shown no remorse, and worse, he was still insisting that the Johannesburg Bar Council had no jurisdiction over him because he had resigned.
He had also disobeyed a court order that he submit billing information to the council’s professional ethics committee.
The Johannesburg Society of Advocates brought the application in the “interests of the court, the profession and the public at large”.
It was launched prior to the promulgation of the Legal Practice Act which gave rise to the Legal Practice Council, the body which now regulates the profession.
Describing the background to the matter, the judges said Kajee’s misconduct had first been flagged in a civil matter involving the Minister of Police before the High Court in 2018. The matter involved the stay of an execution of a writ against the minister, which was apparently issued out of a judgment of which the minister had no knowledge.
In the court proceedings, Kajee was accused of fraudulent misconduct for settling the matter without a mandate. That judge, after hearing submissions that Kajee had “fraudulently raised invoices against the State Attorney in the amount of R34.4-million” had made findings that his conduct amounted to “collusive, corrupt and fraudulent dealings” between him, his instructing attorney and the office of the State Attorney.
As a result, the Johannesburg Society of Advocates wrote to him requesting him to make available his fee book and invoices.
Instead of complying, he resigned from the bar.
In October 2018, the society applied to court for him to be suspended from practice.
In opposing that order, he filed an affidavit, denying he was guilty of “overreaching”, took issue with the judge’s remarks and said the fees he charged were fair and reasonable.
But the suspension order was granted, along with an order directing that he hand over his fee book invoices and bank statements to the society.
But again he did not comply.
This resulted in the application that he be struck from the roll which came before judges Macume and Wepener.
The judges said the judgment against the Minister of Police had subsequently been rescinded by Judge Raylene Keightley in October 2019. She had also made scathing comments about Kajee saying he and the attorney were facing serious investigation by different authorities regarding allegations of unprofessional, fraudulent and corrupt conduct.
She said the allegations were not confined to the matter before her but to other civil matters involving the minister.
Judge Keightley noted that it appeared that Kajee would invoice for work done and be paid for matters in respect of which he had not yet received his brief.
The judges said the nub of the complaint against Kajee was that he received the R34-million as fees from 1 April 2017 to 24 August 2018.
“When the respondent was asked to comment, his evasive response was that the fees were fair and reasonable … at some point he conceded that there had been instances of overreaching but that it was not deliberate. He steadfastly maintained that the (society) was not entitled to access to his fees notes or records.”
The judges said it had been submitted by the society that R34-million equated to R66,950 a day “every calendar day over a period of 511 days” – impossible for any counsel whose highest hourly rate during that period was R2,500 an hour or R25,000 a day.
The judges said the previous court rulings showed that Kajee was guilty of fraudulent conduct.
“This in our view amounts to nothing short of unprofessional conduct, justifying a striking from the roll.
“In the rescission application (before Judge Keightley), the founding affidavit by the Minister of Police sets out clear incidents where there were settlements in matters where no instruction had been sourced or agreed to by the department.
“The Minister alluded to the fact that Kajee utilised an almost stock standard memorandum to motivate the conclusion of settlement agreements.
“The payment of the sum of R34-million to him by the office of the State Attorney resulted from a corrupt relationship. He, amongst others, charged for work he had not performed. That is fraud.”
The judges also noted that the invoices submitted by Kajee were not “tax invoices” which meant he was not registered as a VAT vendor and he had withheld tax “that he stole money from SARS”.
The Minister of Police had also incurred losses resulting from Kajee’s unauthorised settlements.
“This is not a singular or isolated instance or a lapse of judgment that can be condoned. There is no indication that his dishonesty will not reoccur.
“His conduct amounts to a considered effort over a prolonged period to irregularly obtain funds from the fiscus,” the judges said.
According to reports, Kajee has been charged criminally with fraud and the Special Investigating Unit has taken action against him to recover money he stole through inflating invoices and submitting fake invoices.