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2023
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[2023] ZAFSHC 94
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Mokhele and Another v South African Legal Practice Council (5511/2022) [2023] ZAFSHC 94 (27 March 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 5511/2022
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
LEBOHANG
MICHAEL MOKHELE 1
ST
APPLICANT
LM
MOKHELE INCORPORATED
2
ND
APPLICANT
and
THE
SOUTH AFRICAN LEGAL PRACTICE COUNCIL RESPONDENT
In
re
THE
SOUTH AFRICAN LEGAL PRACTICE COUNCIL APPLICANT
and
LEBOHANG
MICHAEL MOKHELE 1
ST
RESPONDENT
LM
MOKHELE
INCORPORATED 2
ND
RESPONDENT
CORAM:
C
REINDERS J
et
AS BOONZAAIER AJ
HEARD
ON:
24 MARCH 2023
JUDGMENT
BY:
AS BOONZAAIER AJ
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties’ representatives by email and release to SAFLII.
The
date and time for hand-down are deemed to be 10:00 on 27 March 2023.
INTRODUCTION:
[1]
This is an application for leave
to appeal by Mr Lebohang Michael Mokhele (the applicant in this
application and the first respondent
in the main application) and
LM
Mokhele Incorporated (the second applicant in this application and
the second respondent in the main application: “the
firm”)
against the order (“the
order”) granted by myself and Reinders J, on
22
November 2023
.
[2]
The South African Legal Practice Council (“the LPC”) is
the
Applicant in the main
application. It sought orders in terms whereof, amongst others, Mr
Mokhele was suspended from practicing as
a legal practitioner (as
attorney) pending an application to be brought by the LPC to have his
name struck off the roll of practising
Legal Practitioners in terms
of the
Legal Practice Act, No. 28 of
2014
(“the LPC Act”).
The order was granted as will be reflected herein below.
[3]
Mr Mokhele (as sole director of the firm) contends that the court
misdirected itself, and the grounds stated in the application
for
leave to appeal (filed on 2 December 2022) reads verbatim as follows:
“
1.
The court erred in not finding and considering that the “URGENT
SECTION 43 REPORT” was compiled
in an irregular manner and by
relying on documentations and information illegally sourced by the
Respondent;
2.
The Honourable Court erred in not considering that, the Applicants
herein submitted proof and evidence
that, the so called “URGENT
SECTION 43 REPORT” is an illegally construed report in that,
the Respondent, transmitted
a letter dated the 05
th
day of
OCTOBER 2022, in which letter it was indicated that, the
Investigation Committee sat on the said date and considered that
there is a
prima facie
proof of misconduct against the First
Application and they are in the process of instituting disciplinary
hearings against him
and on the other hand, the honourable Court was
faced with an application containing “URGENT SECTION 43 REPORT”
which
was compiled illegally and which report is dated the 20
th
day of OCTOBER 2022.
3.
The court erred in considering the Respondent’s application
solely based on the fact that, it is
only an interim order thereby
overlooking the fact that, the said interim order has the effect of a
final order in that, the First
Applicant, alternatively, the
Applicants are incapable of practicing their profession of choice
pending the fulfilment of an uncertain
future event;
4.
In considering the said application, the Honorable Court erred in
overlooking the fact that, the Respondent’s
Council is not
properly constituted and any decision and/or resolution taken by them
are automatically invalid;
5.
The Honorable Court further erred in overlooking that, in instituting
the application, no Council Resolution
was attached on the founding
papers and the only thing that the deponent, MARTUS DE WET relied
upon in their Replying Affidavit
are e-mails exchanged between some
of the Council members and which e-mails where exchanged on different
dates. Such constituted
the application to be materially defective
because, the law requires that, there must be a formal Council
seating in which “a
resolution” is taken and which was
not the case herein.
6.
The said report violated the First Applicant’s rights to be
heard and to make representations prior
to it being released, thereby
violating the First Applicant’s to a just and fair
administrative action as contained in terms
of PAJA, the Constitution
of the Republic of South Africa and the rules of natural justice and
the rule of law, including the common
law;
7.
That the court did not consider the pending leave to Appeal before
the Supreme Court of Appeal and which
has the effect of confirming
and/or dismissing the Respondent’s leave to Appeal, considering
that, what is requested therein,
is the same order as what is
requested in these proceedings.
8.
In granting the order, the Honorable Court erred in considering that
the interim order so handed down
will forever remain an interim order
even after it has been confirmed, should it be. In which, its wording
will always be read
as follows, should same be confirmed by a
competent court:
“
A
rule nisi be hereby confirmed that, the First Respondent is suspended
from the practice of legal practitioners of the High Court
of South
Africa pending an application to be launched by the Applicant to have
the name of the First Respondent struck from the
roll of Legal
Practitioners of the High Court of South Africa”.
9.
The court erred in finding that, the suspension of the First
Application is not prejudicial, whereas
in truth and in fact, the
said suspension has the effect of a final order and gravely
prejudicial to the First Application in that,
his entire practice has
been placed in possession of the curator, whom by the execution of
her duties, will need the guidance of
the First Application in
servicing the Clients of the First Application.
10. It should
be noted that, the order so handed down is selectively suspending
part of the practice of the Application
in that, the order is
selective in suspending the estate practice of the First Applicant
and not the entire practice.
11. The order
handed down by the Honorable Court is not supported by any evidence
which was placed before it.
12. All the
above considered, it will be submitted that another court, faced with
the same facts, will arrive at a different
conclusion.
13. In the
circumstances, the proposed appeal has reasonable prospects of
success.
14. There is
also a compelling reason why leave to appeal should be granted to the
Applicants, namely:
14.1 The Honorable Court
considered a status application and made a ruling which affects the
Applicants without holistically considering
the evidence placed
before it and only relying on the fact that, the order will not be
prejudicial because it is only a provisional
order, thereby handing
down an
ex-tempore
order;
14.2 The court of appeal
will also have to rule authoritatively on threshold to be met by the
Applicant when bringing an application
in terms of
section 43
of the
LEGAL PRACTICE ACT, without
affording the affected
party therein a right of response as far as the contents of the said
report are concerned.
14.3. The Court of Appeal
will also have to consider and rule authoritatively the irregular
procedure adopted when considering the
investigation in terms of
Section 43
of the
LEGAL PRACTICE ACT, which
its current status
violates the right to a just and open administrative action.”
On
the day of hearing of this appeal, Mr Mokhele filed a document titled
“Amended Notice of Application for leave to appeal…”
to include three further paragraphs (quoted verbatim) as follows:
15. The changed
circumstances are compelling grounds for granting to the Applicant
Leave to Appeal. The foremost cornerstone
of the Respondent’s
application for the suspension of the First Applicant’s from
practicing as Legal Practitioner,
was the misappropriation of trust
funds entrusted on the First Applicant by his client complainant. The
cardinal point made was
that the Client complainant was impoverished
and conversely the First Applicant was enriched, as a result of the
purported misappropriation
which was arrived at on very tentative
grounds. It was not then broached to the Court that the First
Applicant has reversed the
impoverishment and repaid to the Client
Complainant all and any money owed to her with the result that the
rationale for the suspension
had been extinguished. It logically
follows that the suspension premised on the assumption that the
pecuniary loss on the part
of the client was permanent was the
motivating factor exacting suspension.
16. It is
respectfully submitted that the changed circumstances exacted a
reconsideration, revisiting and/or relook of the
matter. This may
occur at the level of the Respondent if the matter is remitted.
On the other hand, if Leave of Appeal is
granted the Applicants shall
make an application to tender new evidence.
17. It is humbly
submitted that the interest of justice favors the granting of the
relief sought herein.”
THE
TEST FOR LEAVE TO APPEAL
:
[4]
An application for leave to appeal is regulated by
section 17(1)
of the
Superior Courts Act of 2013
which provides as follows:
“
Leave
to appeal may only be given where the Judge or Judges concerned are
of the opinion that- (a)(i) the appeal would have a reasonable
prospect of success; or (ii) there is some other compelling reason
why the appeal should be heard, including conflicting judgments
on
the matter under consideration;(b) the decision sought on appeal does
not fall within the ambit of
Section 16
(2) (a); and (c) where the
decision sought to be appealed against does not dispose of all the
issues in the case, the appeal would
lead to a just and prompt
resolution of the real issues between the parties”
[5]
The threshold for the granting of leave to appeal has been raised by
this section. The former test that leave
should be granted if there
is a reasonable prospect of success that another Court might come to
a different finding had been abolished.
A court hearing the
application must now be satisfied that the appeal would have a
reasonable prospect of success.
[6]
The SCA in
Smith
v S
,
[1]
per Plasket AJA, had occasion to consider what constituted reasonable
prospects of success in
section 17(1)(a)(i)
and held:
"What
the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law that
a court
of appeal could reasonably arrive at a conclusion different to that
of the trial court. In order to succeed, therefore,
the Respondent
must convince this court on proper grounds that he has prospects of
success on appeal and that those prospects
are not remote but
have a realistic chance of succeeding. More is required to be
established than that there is a mere possibility
of success, that
the case is arguable on appeal or that the case cannot be categorised
as hopeless. There must, in other words,
be a sound, rational
basis for the conclusion that there are prospects of success on
appeal.”
[7]
In respect of Mr Mokhele as sole director of LM Mokhele Incorporated
(the second applicant in this application
and the second respondent
in the main application: “the firm”) we made the
following order:
“…
2.
A rule
nisi
be issued, returnable on
20 April 2023
at
09h30
or
as soon thereafter as the Applicant’s legal representatives may
be heard
,
calling upon the Respondents to show cause, if any, why the following
orders should not be granted as final orders:
2.1.
LEBOHANG MICHAEL MOKHELE
(who is hereafter referred to as “
the
First Respondent
”) be suspended from the practice of legal
practitioners of the High Court of South Africa pending an
application to be launched
by the Applicant to have the name of the
First Respondent struck from the roll of Legal Practitioners of the
High Court of South
Africa.
2.2.
The First Respondent or any other employee of the Second Respondent
be prohibited, with immediate effect,
from operating and dealing with
any of the trust banking accounts of the First Respondent’s
practice(s), the banking accounts
of any deceased estates in respect
of which the First Respondent has been appointed as executrix or
Master’s representative
and any banking accounts of any
insolvent estates in respect of which the First Respondent has been
appointed as a liquidator.
2.3
The First Respondent shall immediately surrender and deliver to the
Registrar of this Honourable
Court his certificate of admission as a
legal practitioner of the Honourable Court.
2.4
In the event of the First Respondent failing to comply with paragraph
2.3 of this order
within two (2) days from the date of service of
this order on him, the sheriff be and is authorised and directed to
take possession
of the certificate and to hand it to the Registrar of
this Honourable Court.
2.5
Margarette van Wyk
and her successor(s) in-title be and is
appointed as
curator bonis
(“
the Curator
”)
of the practice of the First Respondent and to administer and control
the trust accounts of the First Respondent and any
accounts relating
to insolvent and deceased estates and any deceased estate and any
estate under Curatorship connected with the
First Respondent’s
practice as an attorney and including the separate banking accounts
opened and kept by the First Respondent
at a bank in the Republic of
South Africa in terms of
section 86(1)
of the Legal Practice Act No
28 of 2014 ("
the Act
") and/or any separate savings
or interest-bearing accounts as contemplated by section 86(3) and/or
section 86(4) of the Act,
in which monies from such trust banking
accounts have been invested by virtue of the provisions of the said
sub-sections or in
which monies in any manner have been deposited or
credited as set out in paragraph 2.7 hereunder.
2.6
The Applicant is exempted from furnishing security for the
performance of their obligations
as curator
bonis
.
2.7
The First Respondent is ordered to deliver all of the records
relating to his legal practice,
which for all the purposes of this
order, but without limitations, will include all accompanying
records, files, correspondence
and documents which are directly or
indirectly relevant to or which contain particulars of information
relating to:
(a)
Any monies received, held or paid by the First Respondent for or on
account of any
person;
(b) Any
monies invested by the First Respondent in terms of any provisions of
section 86 of the Act;
(c) Any
interest on monies so invested in terms of section 86(3) or section
86(4) of the Act;
(d) Any
estate of a deceased person administered by the First Respondent
whether as executor or on behalf of the
executor, in terms of the
provisions of the Administration of Estate Act, Act 66 of 1965;
(e) Any
estate in which the First Respondent acted as or on behalf of the
Curator to administer the property of
a minor child or any other
person in terms of section 72 of the Administration of Estate Act,
Act 66 of 1965;
(f)
Any insolvent estate administered by the First Respondent as trustee
or on behalf of the trustee in
a trust in terms of the Insolvency
Act, Act 24 of 1936;
(g) Any
trust administered by the First Respondent as trustee(s), or on
behalf of the trustee in terms of the
Trust Property Act, Act 57 of
1988;
(h) Any
company liquidated in terms of the Companies Act, Act 61 of 1973,
administered by the First Respondent
as Liquidator(s) or on behalf of
the liquidator;
(i)
Any Close Corporation liquidated in terms of the Close Corporation
Act, Act 69 of 1984, administered
by the First Respondent as
liquidator or on behalf of the liquidator;
(j)
The First Respondent’s practice as an attorney/ legal
practitioner of this Court, and any related files
of any Client.
2.8.
Should the First Respondent fail to comply with the provisions of the
preceding paragraph 2.7 of this
order on service thereof upon him or
after a return by the person entrusted with the service thereof that
he/she has been unable
to effect service thereof on the Respondents
(as the case may be), the sheriff for the district in which such
accounting records,
records, files and documents are, be empowered
and directed to search for and to take possession thereof wherever
they may be and
to deliver them to such Curator.
2.9.
The said Curator shall have the following powers:
(a) To
hand over any said records to any person entitled thereto, as soon as
she has satisfied herself that the
fees and disbursements in
connection thereof have been paid or satisfactorily secured, or that
same are no longer required;
(b) To
accept a written undertaking by a trust creditor to pay such amount
as may be due to the First Respondent,
either on taxation, assessment
or by agreement, as satisfactory security for the purpose of
paragraph 2.9(a) above, provided that
such written undertaking
incorporates a
domicilium citandi et executandi
of such
creditor;
(c) To
require that any records so handed over, be delivered back to her if
in her sole and absolute opinion,
she considers them to be relevant
to and (including any possible anticipated or threatened claim
against her as
curator bonis
and/or the First Respondent
clients and/or the Legal Practitioners Fidelity Fund ("
the
Fund
");
(d) To
administer and control all of the First Respondent trust account(s)
which for the purpose of this Order
shall include:
(i) The accounts relating
to any estate, curatorship, trust or company, referred to in
paragraph 2.6 hereof;
(ii) Any and all banking
accounts opened and kept by the First Respondent (or on the First
Respondent’s behalf) in terms of
any provision contained in the
Act or any of the Acts referred to in paragraph 2.5 above.
(e)
Subject to the approval of the Board of Control of the Fund ("
the
Board
"), to sign and endorse cheques, and/or I withdrawal
forms and generally to operate upon the said trust accounts, but only
to such extent and for such purposes as may be necessary to bring
completion to current instructions in which the First Respondent
was
acting as at the date of his suspension;
(f)
Subject to the approval of the Board, to recover and receive and, if
I necessary in the interest of
persons having lawful claims upon the
said trust accounts and/or invested by the First Respondent in
respect of monies held, received
and/or invested by the First
Respondent in terms of section 86(2) and 86(3) of the Act ("
trust
monies
") to take any legal proceedings which may be
necessary for the recovery of money which may be due to such persons
in respect
of incomplete transactions in which the First Respondent
may have been concerned and which may have been wrongfully and
unlawfully
paid from the said trust accounts and to receive such
monies and to pay same to the credit of the said trust accounts;
(g) To
ascertain from the First Respondent’s records the names of all
persons on whose account the First
Respondent appears to hold or to
have received trust monies (''
trust creditors
");
(h) To
call upon such trust creditors to furnish proof, information and/or
affidavits as she may require to enable
her, acting in consultation
with and subject to the requirements of the board, to determine
whether any such trust creditors have
a claim in respect of money in
the said accounts, and if so, the amount of such claim;
(i) Subject to the
approval of the Board, to admit or reject in whole or in part, the
claims of any such trust creditors without
prejudice to such trust
creditor's right to access to the civil courts;
(j) Subject to the
approval of the Board, to pay such claims as she may consider
lawfully due;
(k) In the event of there
being any surplus in the said trust accounts after payment of such
claims, to utilise such surplus to
settle or reduce as the case may
be, firstly any claim of the fund in terms of section 86(5) of the
Act in respect of any interest
therein referred to and, secondly
without prejudice to the rights of the First Respondent’s
creditors, the costs, fees and
expenses, or such portion thereof as
has not already been separately paid by the Respondent to the
Applicant and, if there is any
balance left after payment in full of
all such claims, costs, fees and expenses, to pay such balance to the
fund;
(l) In the event of there
being insufficient trust monies in the said accounts to pay in full
the claims the claims of the trust
creditors as reflected in the
records of the First Respondent:
(i)
Subject to the approval of the Board, to close the said accounts and
to pay the credit balances therein
to the fund and to require such
credit balances therein to be placed to the credit of a special
suspense account in the name of
the First Respondent in the Fund's
books;
(ii)
To refer the claims of all trust creditors to the Board to be dealt
with in terms of the provisions of the
Act;
(iii)
To authorise the Board to credit the credit balances referred to
above to its "
paid claims account
" when the Funds
has paid, in terms of Section 55 of the Act, admitted claims of the
trust creditors of the First Respondent
in excess of such credit
balances, provided that, notwithstanding the foregoing, the Board in
its discretion shall be entitled
to transfer to its "
paid
claims account
" the amounts of any claims as and when
admitted and paid by it.
(m) Subject
to the approval of the chairperson of the Fund, to appoint nominees
or representatives and/or consult with
and/or engage the services of
attorneys, counsel, accountants and and/or any such other person
where considered necessary to assist
her in carrying out of her
duties as curator bonis;
(n) To
render from time to time returns to the Board showing how the said
accounts have been dealt with until
such time as the Board notifies
her that she may regard her duties as curator bonis as discharged.
2.10.
The First Respondent shall within 6 (six) months after having
been requested to do so by the
Curator, or within such longer period
as the Curator may agree to in writing, satisfy the Curator, by means
of the submission of
taxed bills of costs or otherwise, of the amount
of the fees and disbursements due to the First Respondent in respect
of his practice,
and should he fail to do so, he shall not be
entitled to recover such fees and disbursements from the Curator
without prejudice,
however, to such rights (if any) as he may have
against the trust creditor(s) concerned for payment or recovery
thereof;
2.11.
A bill of costs drawn on the High Court scale of attorney and client
costs taxed by the Registrar
of this Court (who is authorised to do
so)
mutatis mutandis
as if the Curator and the responsible
officials of the Applicant in discharging their duties as
contemplated in this order had
acted as attorneys, shall constitute
proof of their reasonable fees and disbursements ("the
Curatorship fees and disbursements")
and that the Registrar be
authorised to issue a writ of execution for payment thereof by the
First Respondent;
2.12.
The Curatorship will terminate when the Curator receives a final
written discharge from such duties
from the Applicant consequent upon
the Curator filing with the Applicant a final report and account,
together with supporting vouchers,
in respect of the execution of the
Curator’s duties in terms of this Order.
2.13.
The First Respondent be and is hereby directed:
(a) to
pay, in terms of section 87(2) of the LPA, the reasonable costs of
the inspection of the accounting records
of the Respondents;
(b) to
pay the Curatorship fees and disbursements;
(c)
to pay the expenses relating to the publication of this order or an
abbreviated version thereof.
2.14.
First Respondent be and is hereby removed from office as –
(a)
Executor of any estate of which First Respondent has been appointed
in terms of section 14(1) read with
section 54(1)(a)(v)
of the
Administration of Estates Act, No 66 of 1965
or the estate of any
other person referred to in
section 72(1)
thereof;
(b)
Curator or guardian of any minor or other person’s property in
terms of
Section 72(1)
read with
section 54(1)(a)(v)
and section 85
of the Administration of Estates Act, No 66 of 1965;
(c)
trustee of any insolvent estate in terms of section 59 of the
Insolvency Act, No 24 of 1936;
(d)
liquidator of any company in terms of section 379(2) read with 379(e)
of the Companies Act, No 71 of 2008;
(e)
trustee of any trust in terms of section 20(1) of the Trust Property
Control Act, No 57 of 1988;
(f)
liquidator of any close corporation appointed in terms of section 74
of the Close Corporations
Act, No 69 of 1984;
(g)
administrator appointed in terms of section 74 of the Magistrates’
Court Act, No 32 of 1944.
2.15.
The First Respondent is ordered to pay the costs of this application
on an attorney and own client
scale, including the costs occasioned
by the employment of Counsel.
2.16.
The orders in paragraphs 2.1 to 2.12 and 2.14 above shall operate as
interim orders with immediate
effect.”
[8]
From a reading of the order it is clear that it is an interim order
pending the return date. We agree with
the similar conclusion of the
nature of the order by the learned Judge JP Daffue in an application
(under the same case number
and delivered on 17 March 2023) for
contempt of court brought by the LPC against Mr Mokhele, who had
continued to practise as an
attorney despite the order granted by us.
8.1
The Honourable Judge Daffue, in finding Mr Mokhele guilty of being in
contempt of the order, comprehensively dealt
with the question on the
nature of the order and concluded it to be an interim order. I find
it apposite to quote the following
paragraphs from the judgment:
“
[21] It is common
cause that the respondent decided to carry on practising as an
attorney notwithstanding his suspension. Over and
above what was
stated earlier herein, the respondent made his stance quite clear in
the answering affidavit. He stated that ‘he
only started
operating only after the institution of the application for leave to
appeal and up until same has been set aside by
a competent court, it
remains the respondent’s stance that, he will continue
operating normally as the order suspending him
from practice has been
suspended by the institution of the application for leave to
appeal.’
[2]
The first
three requirements for contempt of court have been established beyond
reasonable doubt.
[22] The position
under
s 16
of the
Superior Courts Act pertaining
to appeals is in
accordance with the general rule laid down in
Zweni
v
Minister of Law and Order of the Republic of South Africa.
[3]
The three attributes of a ‘judgment or order’ subject to
an appeal are the following:
a.
it must be final in effect and not susceptible of alteration by the
court of first instance;
b.
it must be definitive of the rights of the parties, it must grant
definite and distinct relief; and
c.
it must have the effect of disposing of at least a substantial
portion
of the relief claimed in the main proceedings.
It is accepted that an
interlocutory order with a final and definitive effect on the main
application is a ‘judgment or order’
which is appealable.
The real question is whether it can be altered and/or corrected on
the return date or whether it can only
be attacked on appeal. Having
said this, there is scope for a finding that an interim interdict is
appealable on the basis that
it has the effect of a final
judgment.
[4]
This is not such a
case.
[23] Although the
return date of the rule nisi in casu has been set to be 20 April
2023, and thus about five months after
the suspension order was
granted, I have no doubt that the order of 23 November 2022 does not
have the effect of a final judgment
although the respondent is
temporarily prevented from practising as an attorney. He and his
company are called upon to show cause
on the return date of 20 April
2023, a month from now why the interim orders should not be made
final. Contrary to his version
such orders are susceptible to
alteration by the court of first instance. If the respondent really
believed that he was entitled
to practise in the meantime, he could
have applied for relief to obtain his books and files confiscated by
the applicant, to unfreeze
his trust bank account with Standard Bank
and to direct the applicant to allow him to apply for a Fidelity Fund
Certificate. He
failed to take any of the steps in this regard.
[9]
In
City
of Tswane v Afriforum and Another
[5]
the Constitutional Court reaffirmed the principle that interim orders
may be appealable where the interest of justice would be
served by
the granting of leave. In this application we have not been so
convinced. In fact, allowing an appeal where there is
a return date
would result in the undesirable effect of a piecemeal determination
of the matter.
[6]
Moreover, Mr
Mokhele did not make out a case of any irreparable harm that would be
suffered if the leave to appeal is not granted
(bearing in mind that
it is not a final order).
[10]
We are therefore of the view that the order is not appealable and the
application stands to be dismissed on that score
alone.
[11]
Having found the order to be not appealable the question as to the
chances of success on the merit do not really come
to the fore.
Notwithstanding this, we in any event are satisfied that another
court would not come to a different finding on the
merits. We have
carefully considered the grounds for the proposed appeal as well as
the merits on the papers as it stood at the
time of the order. The
main concern of the LPC, having received complaints and having
compiled a report in terms of Section 43
through an investigation by
the Investigation Committee, concluded misappropriation of money in
the Trust Fund account of the firm
for which Mr Mokhele furnished no
acceptable explanations. It should be borne in mind that there is, in
applications like these,
a duty upon a legal practitioner to disclose
and fully explain to court prima facie discrepancies in a trust
account. It is insufficient
to merely attempt to deny allegations.
After all it is Mr Mokhele who has the intrinsic knowledge in respect
of the account and
who can easily remove any concerns that the LPC
or/and court might have. This the Mr Mokhele has not done so far and
is something
that he yet might still attempt before or on the return
date. We are of the considered view that another court will not come
to
a different finding.
[12]
For the above reasons we conclude that the order is not appealable
but even if it was, it would carry no prospect of
success.
[13]
It follows therefore that the application for leave to appeal must
fail.
[14]
It is trite that costs follow the event. I have no reason to
deviate from the rule.
ORDER:
[15]
The following order is made:
The
application for leave to appeal is refused with costs.
AS
BOONZAAIER
I
agree.
C
REINDERS
Appearance
for the applicant in the main application
(the
respondent in the application
for
leave to appeal): M.S.
Adv. Mazibuko
Instructed
by: Amade
& Company Incorporated
BLOEMFONTEIN
Appearance
for the respondents in the
main
application (the applicants in the
application
for leave to appeal): Mr
LM Mokhele (in person)
[1]
2012 SACR567(SCA)at para [7]
[2]
Answering
affidavit para 68, p 132.
[3]
1993
(1) SA 523
(A) at 532 i – 533 b; see also
SA
v JHA
2022 (3) SA 149
(SCA) para 23 and numerous other judgments since
Zweni
.
[4]
Mathale
v Linda and another
2016 (2) SA 461
(CC) paras 25 – 30, which case is clearly
distinguishable bearing in mind that the eviction order was found to
have an
immediate and devastating effect upon a homeless person.
[5]
2016 (6) SA 279
(CC) at para 41.
[6]
City of
Cape Town v South African Human Rights Commission
[2021] ZASCA 182
at para 11.