Naude and Another v South African Legal Practice Council (A262/2023) [2025] ZAGPPHC 774 (12 August 2025)

Case Note

Naude, Wynand and Naude (Wynand) Inc Attorneys v South African Legal Practice Council
(High Court of South Africa, Gauteng Division, Pretoria) Case No A262/2023;
[2025] ZAGPPHC ___ (12 August 2025)

Reportability

The judgment is reportable because it clarifies the threshold for the interim suspension of a legal practitioner pending a strike-off application under the Legal Practice Act 28 of 2014. It explains the duties of the Legal Practice Council when approaching a court on an urgent basis and the evidential burden that must be discharged before a practitioner’s right to practise is curtailed. The case is therefore of substantial interest to other courts and to the wider profession as it re-affirms the principles of procedural fairness and the protection afforded to a practitioner’s reputation.

Cases Cited

Stupel and Berman Incorporated v Rodell Financial Services Proprietary Limited 2015 (3) SA 36 (Supreme Court of Appeal).

Legislation Cited

Legal Practice Act 28 of 2014.

Rules of Court Cited

Uniform Rule 6(12) governing applications brought as a matter of urgency.

HEADNOTE

Summary

The appellants, an attorney of thirty-seven years’ standing, Mr Wynand Naude, and his firm, appealed against an urgent order granted on 22 February 2023 suspending him from practice pending the Legal Practice Council’s main application to have his name struck from the roll. The suspension arose from two complaints, principally one made by Opes Properties, which alleged that Mr Naude had misrepresented the status of funds held in his trust account. The Full Court set aside the suspension, holding that the Council had failed to show that the practitioner’s continued practice posed an immediate risk to the public or the administration of justice.

Key Issues

Whether the practitioner’s correspondence constituted a fraudulent misrepresentation of trust monies.
Whether the Council had established a prima facie case justifying interim suspension on an urgent basis.
Whether the court a quo correctly exercised its discretion in awarding costs against the practitioner.

Held

The appeal succeeded. The suspension order was replaced with an order dismissing the Council’s application and directing it to pay the appellants’ costs on the scale as between attorney and own client. The Court found that Mr Naude’s letters were factually accurate, that no undertaking had been given to Opes Properties, and that the Council’s investigation and subsequent urgent application were procedurally flawed and unsupported by the evidence required for so drastic an interim remedy.

THE FACTS

Mr Naude acted for a Canadian businessman, Mr Asfar, who between 2015 and 2016 deposited approximately R120 million into the firm’s trust account. Two companies, Equity Cheque Capital Corporation (Pty) Ltd and Equity Cheque Card Corporation (Pty) Ltd, were incorporated to conduct business, and each concluded lease agreements with Opes Properties.

After the leases soured, Opes obtained judgments against both companies and Mr Asfar. Believing that substantial funds were still held in trust, Opes attempted execution at Mr Naude’s offices. No funds were found because, acting on his client’s instructions, Mr Naude had transferred the monies to a third party on 27 December 2017—months before Opes sued. Opes then complained to the Legal Practice Council, asserting that Mr Naude’s earlier letters had misrepresented that the funds were held for the companies.

The Council reacted by bringing an urgent ex parte application to suspend Mr Naude. The court a quo granted the order. Leave to appeal was later refused by that court but authorised by the Supreme Court of Appeal, leading to the present appeal.

THE ISSUES

The Full Court had to determine whether the correspondence relied on by Opes amounted to professional misconduct warranting immediate suspension; whether the Legal Practice Council had complied with its own obligations in bringing the urgent application; and what costs order was appropriate in the circumstances.

ANALYSIS

First, the Court examined the content of the impugned letters. It concluded that the letters merely recorded the balance of trust funds without undertaking to hold those funds for Opes or any third party. The factual assertion in each letter that the funds were then in the firm’s trust account was borne out by bank records, negating any allegation of dishonesty.

Secondly, relying on the principles articulated in Stupel & Berman Inc v Rode/ Financial Services (Pty) Ltd, the Court distinguished between a practitioner providing information about trust monies and one who, as an adjectus solutionis causa, binds himself to a creditor. The Council’s case conflated the two, resulting in an untenable accusation of fraudulent misrepresentation.

Thirdly, the Court criticised the Council’s use of the urgent procedure. The matter was not pressing: the alleged misconduct had occurred years earlier; the funds had long since been transferred; and no evidence suggested that Mr Naude’s ongoing practice posed an imminent threat. The granting of an interim suspension in such circumstances offended both the dictates of fairness and the high threshold traditionally required for so intrusive a remedy.

REMEDY

The suspension order of 22 February 2023 was set aside. In its place the Court ordered that the Council’s application be dismissed and directed the Council to pay the appellants’ costs on the scale as between attorney and own client, marking the Court’s disapproval of the Council’s unfounded and procedurally defective approach.

LEGAL PRINCIPLES

A legal practitioner may only be suspended pending strike-off proceedings if there is cogent, prima facie evidence of dishonesty or conduct posing an immediate danger to the public or the profession. Mere allegations advanced by disgruntled litigants, absent corroboration, are insufficient.

Correspondence that accurately reflects the position of trust monies does not amount to an undertaking to third parties, and therefore cannot ground liability or professional sanction unless an explicit assumption of responsibility is shown.

Professional regulators invoking extraordinary interim relief must satisfy the same procedural and evidential standards as any litigant, especially when the relief sought has grave consequences for a practitioner’s livelihood and reputation.