A disgruntled man who wanted to stay married to his wife, failed to convince the High Court in Pretoria that the attorney representing his wife, was unfit for the profession after he refused to advise her to return to her matrimonial home.
The wife had left the matrimonial home on September 9, 2019, and she filed for divorce the following month.
She was represented by Kagiso Mangaliso Mafungo.
The husband was represented by Ramakgaphola, but he subsequently terminated her mandate.
The husband was not happy with his wife’s departure from the matrimonial home. He accused her of deserting him and said he suffered great indignity and depression as a result.
He held that his wife failed to obtain his consent to leave the matrimonial home and he remained entitled to his conjugal rights.
He further added that his wife’s departure from the matrimonial home was without legal standing and without legal basis.
He instructed his attorney to compel his wife to return to the matrimonial home and to reconcile with him.
His attorney executed the instructions, however, the wife was not prepared to return to the matrimonial home.
The man then approached his wife’s lawyer, Mafungo, and demanded the he convince her to return to the matrimonial home.
Mafungo did not take instructions and indicated that the wife had told him that she was not prepared to return to the matrimonial home.
The man found it exasperating and intolerable that his wife, together with her attorney, did not comply with his demands and did not share his views.
After his attempts to get his wife back home failed, he told her to dig two graves when she goes to war as she may need a grave herself.
He also questioned Mafungo’s qualifications, experience, skills and abilities.
He was also of the view that Mafungo was not qualified to mediate and/or draft parenting plans after he had presented him with a parenting plan as advised by the wife.
He filed a complaint against Mafungo with the Legal Practice Council (LPC) and wanted the council to investigate Mafungo’s “unprofessional conduct”.
In response, the LPC said that the nature of his complaint does not fall within the scope of their powers of investigation.
“We unfortunately will not be able to assist you as we only have disciplinary powers. We therefore suggest that you contact an Attorney, the Legal Aid Board or Legal Clinic for assistance,’’ said the LPC.
He also wrote a letter to Mafungo saying:
“Trust me Sir, you will account for your conduct even if it is the last thing that I do ... You were made privy to a complaint that I lodged with the Legal Practice Council and you have been copied in my response to their non-response. I copied you so that you should be aware that you need to be cognisant of the Code of Conduct that binds you in your practice…
“I am not sure if, Mr. Tough Lawyer, you still opine that ‘she has no desire to return to her prior residence and is not legally obliged to do so!’ If you consider this a threat you are welcome to do so, but I will take you to the High Court for not been a fit and proper person to practice law…”
After failing with the LPC, he approached the high court to get a different view.
Judge J Sardiwalla presided over the matter and said the man’s advances toward Mafungo totally disregard and seek to undermine the wife’s rights to independent legal counsel.
“The applicant (the husband) prioritises his own interests and seeks to procure the assistance of the second respondent (Mafungo) in prioritising his interests at the expense of the second respondent’s client,’’ said the judge.
Judge Sardiwalla said the man’s conduct is reprehensible, inconsistent and incompatible with his wife’s rights to access the court through an independent legal practitioner.
He said the husband failed to state what advice Mafungo gave to the wife that contravened the law or what law was contravened.
“I am satisfied that there was no evidence of misconduct on part of the second respondent (Mafungo) and that the decision of the first respondent (LPC) did not act irrational, arbitrarily or capriciously.”
The judge dismissed the husband’s application and ordered him to pay the costs.
IOL