By Mhlonishwa Hlophe | 2020-08-09

The Eswatini Law Society has been handed its biggest challenge yet, with a case brought to its attention on three of the country’s luminous learned friends.

The three top lawyers have been reported to the society for alleged fraudulent performances they allegedly executed whilst assigned to work on the distribution of assets of an Estate.

However, given the nature of the allegations levelled against them, and that they have not been formally summoned to appear before the Law Society Tribunal, the names of the lawyers will be withheld. It follows that the estate they are alleged to have defrauded cannot be revealed, for now.

However, the estate is a multimillion estate that has been the subject of a disbute for years, following the controversial sale of a piece of property.

The dispute arises out of a case filed by the grandchildren who are part of the listed beneficiaries in the will for an amount of just under three per cent.

 debated

The grandchildren recently filed papers in court wherein they prayed to be granted an order for the removal of the executor in their grandmother’s estate. The merits of their application are still to be debated at the High Court. Their matter failed to take off last month other parties filed their papers opposing the application.

One of the grandchildren has taken the matter up with the Law Society, writing to its secretary Thulani Maseko on June 19, 2020. The complaints against the learned friends are made in terms of the legal Practitioners Disciplinary Proceedings Regulations of 1989.

The defendants cited in the letter acknowledged to have been notified about the complaints, but declined to comment, stating that they would await correspondence from the society.

Maseko confirmed to have received the letter, saying they would refer it to the tribunal as they were the ones tasked to handle such matters. He said the tribunal would communicate with the relevant parties for a hearing.

According to the applicant, the three lawyers are the defendants to the complaints.  He said the complaints are in part interrelated.

“As these matters are serious, I sent a copy of the substance of the complaints to be lodged to all three of them at midday on Friday 12 June, 2020.

“Gross professional misconduct and prima facie fraud by the attorney and against the conveyancers he instructed, who is alleged to have transferred two estate farms in his mother’s estate based on violations of the law, without a written agreement being in force and finally with a forged consent purporting to be from the master.”

He further averred that the matters relate to issues where one of the lawyers and the other defendants had personal knowledge.

complaints

“The documents are all common cause. I believe the submissions, whilst not common cause, are logical and correct. There are two areas where the defendants to these complaints are the only people who know exactly what happened and who did what. They need to explain those parts as at the moment they are covering up,” he stated.   He further mentioned in the letter that his brother in law (name withheld) was appointed executor of his mother’s estate and not a beneficiary.

One of the three attorneys is a client to the estate and not the executor. “It is common cause that an estate is set of assets and liabilities and the executor is appointed in a representative capacity (N.O.) with a legal duty of care to the interests of beneficiaries and any creditors.   “An estate attorney has the same duty of care to the estate and beneficiaries,” he wrote in his letter.

He recounted that the executor’s rights and powers flow from the master and an executor is hence, a quasi-judicial officer of the court and acts on behalf of, or in the stead of, the Master of the High Court.  He said an estate, hence, also has a duty to the Master. The applicant recounted that any misconduct done by an executor, is hence, done in his personal capacity.  He said an executor has to follow the law of Eswatini as the Administration of Estates Act dictates.  “I am not a beneficiary, but my children are and I have a direct interest in the matter as I am an applicant in Case 748/17, which I brought on their behalf as they were less than 21 years of age. My children are the second, third and fourth applicants in the case to remove the executor on the basis of misconduct.

He also revealed that he had expended well over E1 million ‘on needless fees in the matters that would not have been needed’ if the attorney had acted bona fide in terms of his duties as an officer of the court and an admitted attorney.

fraud

He accused his attorney of colluding and conspiring with the executor to commit fraud against the estate, the fiscus and the honourable court.

“He also conspired to by-pass the Eswatini Constitution and Statutes. None of these matters could have occurred if he had followed his professional duties,” he stated. According to his papers, a conspiracy by one of the lawyers and the executor has caused to defraud the Estate of E17 million, and the Eswatini fiscus of E1.2 million.

These allegations are, however yet to be tested in a competent court, and are subject of the complaint laid by the application to the Law Society.

The application accuses one of the lawyers of a conspiracy to bypass the Eswatini Constitution and the statutes of Eswatini, alleging that the lawyer masterminded this plot to be a success including one of the other defendants.

He outlined that there was apparent conspiracy to effect transfer at the deeds office on the strength of a bogus and forged statutory consent purporting to be from the Master of the High Court.

“The further conspiracy to hide the truth and try to cover up and mislead the High Court of Eswatini, by transferring the two estate farms without a guarantee.

This attorney was again fingered to pervert the course of justice working together with the executor. A conspiracy to pervert the course of justice involving primarily a Manzini based conveyancer.”

 Crabtree stated that the accused continued to try to pervert the course of justice in order to protect his own personal interests to the detriment of the estate, and also by bringing disrepute to the legal profession, the judiciary and the reputation of Eswatini.

Conspiracy to defraud Estate of E17 million

According to the applicant, one of the three attorneys is alleged to have played a leading role in defrauding the estate E17 million.

He said a self-evidently fatally defective valuation of E28 million for four farms was arranged by the executor at the end of May 2015.  “The attorney (name withheld) drafted the sale of shares agreement (SOS) that was signed on 19 December 2015. In terms of 2.1.2 it required two statutory consents from the master. The first being consent to sell two estate farms and then another consent for the estate to sell its shares,” he alleged.

He said he then filed a formal and substantive complaint in relation to the SOS agreement on the basis the E11m was a fraud against the estate and a tax fraud. He said it was also common cause that there was no valuation for the farms at E11 million.

“The master gave statutory consent for the sale of the two estate farms on 7 July 2016.  This is common cause with all parties including the attorney,” reads part of the papers.

He further mentioned that the master of the High Court did not know of the E65 million valuation of the two estate farms and completed two months previously. He said she knew the E11 million price for the two estate farms was bogus, and that there was no valuation of them for E11 million. Hence, as master she needed a valuation in order to give consent.

“She inspected the estate farms so she also knew they were the main and most valuable ones, with all the infrastructure,” he stated in his complaints.

“They were signed by the executor and his wife as a director of the purchaser on 20 July 2016. He as the instructing party, hence he instructed his friend, a conveyancer firm to register the transfer which they did and the estate was defrauded by a prima facie amount of E 17 million. In truth, a lot more as the value of the two farms was over E65 million.  He was integral to the implementation of the fraud.”

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