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'Naked theft': Eastern Cape lawyer struck off roll for defrauding clients of millions

Mzwandile Bobotyana brought 'shame and disgrace on legal profession': judge

19 October 2020 - 11:23 By Ernest Mabuza and ernest mabuza
The high court in Makhanda has struck the name of Mzwandile Bobotyana from the roll of attorneys.
The high court in Makhanda has struck the name of Mzwandile Bobotyana from the roll of attorneys.
Image: Picture: 123RF/SKYCINEMA

The high court in Makhanda (Grahamstown) has struck the name of lawyer Mzwandile Bobotyana from the roll of attorneys after he allegedly defrauded a businessman out of R2.1m in an illicit house sale.

Businessman Azal Muhammad engaged the services of Komani (formerly Queenstown), attorney Bobotyana for assistance in buying a house in Cacadu, formerly Lady Frere.

The court said the two came to an agreement whereby Bobotyana was to facilitate the sale of the property.

“He had power of attorney to sell the property, so he said. Muhammad paid Bobotyana more than R2m to purchase the property,” acting judge Peter Kroon said in a judgment passed last week.

He said what Muhammad did not know was that the arrangement was a sham.

“Bobotyana had no intention of selling him the property and Muhammad was not to get a cent of his money back from Bobotyana,” Kroon said. 

Kroon said the courts have repeatedly emphasised that impeccable ethical standards were required of an attorney who practised law. He said an attorney must conduct himself or herself with the utmost integrity and with scrupulous honesty.

“This unfortunately is a story of a dishonest attorney abdicating that responsibility and bringing disgrace and shame on the legal profession,” Kroon said.

Bobotyana led Muhammad to believe that he was authorised to sell the house and said he was in possession of a special power of attorney to do so.

Relying on this representation, Muhammad entered into a deed of sale drawn up by Bobotyana in March 2016 for the purchase of the property for an amount of R2.15m. The purchase price was to be paid in cash.

After the money was deposited into Bobotyana's trust account, Bobotyana dissipated the funds by way of more than 70 withdrawals. As of August 31 2016, Bobotyana’s trust account held the princely sum of R81.86.

Muhammad became concerned when the house was not transferred to him and enlisted the help of another Komani law firm, Bowes McDougall Inc. This law firm referred a complaint to the Law Society about Bobotyana's conduct in May 2016.

The Law Society asked Bobotyana to furnish it with copies of his trust account statements as from March 31 2016. Bobotyana refused to co-operate.

“The refusal by Bobotyana to co-operate with the Law Society was conduct unbecoming of an attorney” Kroon said.

Bobotyana acknowledged at a meeting with a Bowes McDougall Inc attorney that the sale was not valid and undertook to refund the entire purchase price by no later than September 2 2016. However, this did not happen.

Bobotyana has since been charged criminally with theft and fraud. The criminal proceedings are still pending and Bobotyana has yet to plead to the charges.

Kroon said an analysis of the facts revealed how Bobotyana systematically plundered his trust account in what can properly be described as an exercise in “naked theft and fraud”.

He said Bobotyana demonstrated no remorse. “Rather he has chosen to cynically persist with the contention that he is a fit and proper person.”

Kroon mentioned that Bobotyana had been found by the court in another matter to have acted unprofessionally. In that matter, Bobotyana’s client Loyiso Ntloko was paid R650,000 by the Road Accident Fund (RAF) in settlement of his claim.

The money was paid into Bobotyana’s trust account, after which he transferred to Ntloko the meagre amount of R10,000 and kept R640,000 for himself .

“He refused to render an itemised bill of costs to Ntloko.”

The high court last year ordered Bobotyana to furnish Ntloko with an itemised bill of costs.