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[2023] ZAGPPHC 723
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M.G.K v Legal Practice Council and Another (1930/2021) [2023] ZAGPPHC 723; [2023] 4 All SA 422 (GP) (22 August 2023)

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Note:
Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISON,
PRETORIA)
Case
No.:
1930/2021
(1)
REPORTABLE: YES/
NO
(2)
OF INTEREST TO OTHER JUDGES: YES/
NO
(3)
REVISED.
yes
DATE:
22/8/2023
SIGNATURE:
In
the matter between:
M[...]
G[...] K[...]
Applicant
and
LEGAL
PRACTICE COUNCIL
First Respondent
KALIPA
KAGISO MANGALISO MAFUNGO
Second Respondent
JUDGMENT
SARDIWALLA
J:
[1]
The Applicant seeks to review and set aside the recommendation of the
Investigating
Committee set out in the report of first respondent
dated 31 August 2020.
[2]
The applicant alleges gross violation of
fundamental human rights emanating from acts of professional
misconduct on the part of
the second respondent, an attorney, and
that the investigation that was conducted by the first respondent was
procedurally and
substantively unfair.
Background
Facts
[3]
The Following are the material facts of this matter:
3.1 The applicant lodged
a complaint with the first respondent on the 13 November 2019.
3.2 On 11 December 2019
the first respondent informed the applicant that it would not be
conducting an investigation. The letter
held that:
“
we
acknowledge receipt of your complaint dated 13 November 2019.
Kindly note  that  the  powers  of
the
Legal  Practice  Council  are  of disciplinary
nature only and we only investigate concerning allegations
of
unprofessional conduct of Legal Practitioners practicing within our
jurisdiction.
Kindly
be advised that the nature of your complaint does not fall within the
scope of our powers of investigation.
We
noted that you are not requesting legal advice or legal assistance,
but we are of the view that you
require
assistance
of an attorney in order for your matter to be resolved. 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 (as can be
found at the various universities) for assistance.”
[1]
3.3 On
the 27 December 2019 the applicant wrote to the first respondent
wherein I pointing out that the decision not to investigate
was not
competent
[2]
.
3.4
Without explaining what had changed in its letter dated 11 December
2019 on the 6 February 2020 the first respondent placed
the second
respondent under investigation
[3]
.
3.5 On the 13 March 2020
the first respondent requested submissions from the applicant in
response to the second respondent’s
affidavit.
3.6 On the 11 June 2020
the applicant responded to the first respondent’s request.
3.7 On
or around the 14th of September 2020 the first respondent the
applicant that on available evidence no unprofessional conduct
could
be found on the part of the second respondent. The first respondent
stated that “
we
confirm that we are closing our file.
”
[4]
3.8
The applicant requested reasons and on 7 October 2020 the first
respondent provided a report
[5]
.
3.9 In a number of
correspondences exchanged between the parties the applicant noted his
intention to appeal the decision.
3.10
On the 30 September 2020 Messr. Masedi wrote to the applicant and
stated that:
“
we
acknowledge receipt of your letter dated 21 September 2020. Please be
advised that you can reduce your appeal to the Decision
of the
Investigation Committee in writing and send it to us. It will then be
considered and we will revert back to you.”
3.11 On the 29 October
2020 the applicant lodged an appeal to the Investigating Committee of
the first respondent through Messr.
Masedi against the recommendation
of no unprofessional conduct on the part of the second respondent.
3.12 On the 4 November
2020, Messr. Masedi informed the applicant that an appeals tribunal
in terms of Section 41 of the Legal Practice
Act28 of 2014 was not in
place when held that
“
I
have discussed your appeal in length with my HOD…unfortunately
we are still waiting on the department of Justice and LPC
to have
those structures in place for us to deal with appeals. As it stands
we are unable to process any appeal given the reason
above. Please
note that in the mean time you can exercise your civil remedies if
you are not happy with the outcome. We apologise
for the
inconvenience.”
[4]
The applicant brought the
present application seeking the following relief in terms of
section
6(1) of the Promotion of Administrative Justice Act 3 of 2000
(“PAJA”):
“
1.
Reviewing and setting aside the recommendation of the Investigation
Committee set out in the report of the First Respondent dated
31
st
August 2020 titled: “Complaint 7- Investigating Committee-
National Office -legal Practice Council, meeting on 31 August
2020,
M[...] G[...] K[...] (Complainant) and Kalipa Mafingo (Respondent)
Recommendation” attached to the founding affidavit
as annexure
“KMG1”.
2.
Declaring that the Second Respondent failed to comply with the
provisions of a. 9.7, 9.7.1 and 9.7.2 of the Code of Conduct for
All
Legal Practitioners, Candidate Practitioners and Juristic entities
and/ or Rule 6(4) of the Rules regulating the conduct of
the
proceedings of the Magistrate’s Court of South Africa in
relating to stating the material facts relied on in the pleadings
as
per paragraph 3 below.
b.
Section 33(5)(b) of Act No. 38 of 2005 and/or Clause 3.3.3 of the
Code of Conduct for All Legal Practitioners, Candidate Practitioners

and Juristic entities in relation to attempts at mediation of a
parenting plan as per the correspondence of the 10
th
and
11
th
October 2019 attached to the founding affidavit as
Annexure “KMG3” and Annexure 1.1 of Annexure “KMG2”.
c.
Section 9 of Act No.16 of 1963 in relation to false statements under
oath in para 9, 24 and 25 attached to the founding affidavit
as
Annexure “KMG8”.
3.Directing
the Second Respondent to state the material facts relied on for the
allegations of emotional, and psychological abusive
conduct by the
Applicant towards the client of the Second Respondent per para 10(iv)
of the Particulars of Claim in the Combined
Summons dated 31
st
October 2019 attached to the founding affidavit as Annexure “8”
of Annexure “KMG2” failure which declare
that the conduct
of the Second Respondent is a gross violation of the dignity of the
Applicant.
4.
Granting of costs in the event of opposition of the application.
6.
Granting further and/or alternative relief as this court may deem
fit.”
[5]
The applicant filed a notice to
amend the notice of motion for the relief as follows:
1
.
“Calling on the First Respondent, in terms of Rule 53(1)(a), to
show cause why the abovementioned decisions
should not be reviewed
and set aside.”
2
.
“Calling on the First Respondent, in terms of Rule 53(1)(b), to
despatch within fifteen  (15)  days
after
receipt  of  this  Notice,  to  the
Registrar  any  additional record (s)
of the proceedings of
the 31st  of August 2020 that the Applicant seeks to have set
aside, together with such reasons that
the First Respondent is by law
required or desires to give or make, and notify the Applicant after
doing so.”
[6]
The first and second respondents opposed the application.
Grounds
of Review
[7]
The Applicant’s ground of review essentially are that:
7.1 That the first
respondent failed to observe the legal provisions of Section 40(7)(b)
of Act No. 28 of 2014 that holds that:
“
if a
disciplinary committee finds that the legal practitioner...is not
guilty of misconduct it must inform the complainant of the
right of
appeal as provided for in terms of Section 41.”
7.2 In terms of
sections
6(1)(e)(iii) of PAJA in that irrelevant considerations were made; and
7.3 In terms of section
and 6(1)(e)(vi) that this lead to an arbitrary and capricious
decision-making.
The
Applicant’s submission in support of the relief
[8]
The applicant submitted that the first respondent did not comply with
the legal provision
of Section 40(7)(b) of Act No, 28 of 2014 and on
the authority of Section 41 of Act No. 28 of 2014 which holds that
the conduct
or finding of a disciplinary committee is appealable. In
his initial correspondence regarding his appeal he was advised on how
to structure his appeal. Thereafter, on 4 November 2020 he was then
told that the appeal structures that are contemplated in Section
41
are not yet in place. That the first respondent misled him in its
letter by holding that;
“
please note
that the act provides that an Ombudsman and an appeals tribunal
should be established in order to deal with the appeals
from parties
who are not satisfied with the outcomes of the Investigation
committee”
[9]
He submits that Section 37(1) of
Act No. 28 of 2014 holds that “The Council must,
when
necessary, establish investigating committees, consisting of a person
or persons appointed by the Council to conduct investigations
of all
complaints of misconduct against legal practitioners...”
[10]
The administrative action taken
by the first respondent in dismissing the complaint was not lawful,
reasonable and procedurally
unfair. The respondent  failed
to  provide  adequate  reasons in terms Sections 5(2)
and  5(3)
of  PAJA  are  such  that
the  dismissal  of  my  complaint  is
without
good  reason. In addition in terms of Sections
6(1)(e)(iii) and 6(1)(e)(vi) of PAJA in that irrelevant
considerations were
made leading to an arbitrary and capricious
decision-making. In the circumstances, the recommendation and/or
decision of the Investigation
Committee of the first respondent
stands to be reviewed and set aside.
[11]
The second respondent acted
ultra vires
owing to his attempts
at mediating a parenting plan when he is not the suitably qualified
person as contemplated in Section 33(5)(b)
of the Children’s
Act. Failure of the second respondent to state the material facts
that he relied on for the allegations
of emotional, and psychological
abusive conduct towards his client is a gross violation of the
applicant inherent human dignity.
[12]
That this Honorable Court has inherent powers to regulate its own
process to consider the general conduct
of the second respondent.
The
first respondent’s submissions
[13]
The first respondent only filed an answering
affidavit and did not file heads of argument. The first respondent

raised a preliminary point of non-joinder of the Investigation
committee and/or its Chairperson stating that the current application

was vexatious, scurrilous and scandalous.
[14]
The submissions of the first respondent were essentially that:
14.1 The second
respondent is an attorney and notary of the Honourable Court. He is a
general practitioner and he has practised
for a period of
approximately eight years.
14.2 The applicant is a
member of the general public and a former client of attorney CR
Ramakgaphola.
14.3 There was no
professional relationship between the applicant and the second
respondent.
13.4 The second
respondent acts on behalf of, and on the instructions of, the
applicant's wife/former wife, Dr M[...] K[...].
14.5 Dr M[...] K[...]
left the matrimonial home on 9 September 2019.
14.6 During or about the
end of October 2019 Dr M[...] K[...] filed for divorce. The second
respondent was Dr M[...] K[...]'s attorney
of record in the divorce
proceedings.
14.7 Attorney
Ramakgaphola acted for the applicant in the divorce, but he
subsequently terminated her mandate.
14.8 The applicant did
not take well to Dr M[...] K[...]'s departure from the matrimonial
home. He accused Dr M[...] K[...] of having
deserted him. According
to the applicant Dr M[...] K[...] demeaned him and sullied his
reputation. In the complaint against the
second respondent the
applicant recorded that he had suffered great indignity and
depression as a result of Dr M[...] K[...]’s
conduct.
14.9 The applicant
recorded his views on his purported matrimonial rights in
correspondence, including that:
14.9.1 Dr M[...] K[...]
failed to obtain his consent to leave the matrimonial home.
14.9.2 He remained
entitled to his conjugal rights.
14.9.3 Dr M[...] K[...]'s
departure from the matrimonial home was without legal standing and
without legal basis.
14.9.4 Dr M[...] K[...]
had to be compelled to return to the matrimonial home and to
reconcile with him.
14.10 The applicant
instructed attorney Ramakgaphola to, on his behalf:
14.10.1 demand that Dr
M[...] K[...] return to the matrimonial home; and
14.10.2 insist that the
parties reconcile.
14.11 Attorney
Ramakgaphola executed the applicant's abovementioned instruction. Dr
M[...] K[...], however, was not prepared to
return to the matrimonial
home and did not share the applicant's views regarding his marital
rights and her marital duties.
14.12 The applicant
demanded that the second respondent advises Dr M[...] K[...] to
return to the matrimonial home. The second respondent
did not however
take instructions from the applicant. Dr M[...] K[...] was not
prepared to return to the matrimonial home and she
instructed the
second respondent accordingly.
14.13 The applicant found
it to be exasperating and intolerable that Dr M[...] K[...] and the
second respondent did not comply with
his demands and did not share
his views. The applicant in no uncertain terms expressed his
displeasure with the second respondent's
failure to follow his
instructions.
14.14 During October 2019
Dr M[...] K[...] instructed the second respondent to prepare a
parenting plan, the purpose of which was
to facilitate the joint
exercise by the parties of their parental responsibilities.
14.15 The second
respondent executed his last mentioned instruction and submitted the
parenting plan to the applicant for comment
during early October
2019. The applicant did not deal with the parenting plan suggested by
Dr M[...] K[...] meaningfully or at
all. He, instead, without further
ado launched an offensive upon the second respondent. He did so by
questioning:
14.15.1 the second
respondent's qualifications, experience, skills and abilities;
14.15.2 the soundness of
the instructions received by the second respondent from Dr M[...]
K[...]; and
14.15.3 the execution by
the second respondent of Dr M[...] K[...]'s instructions.
[15]
That the applicant intently sought to establish whether
Mr. Mafungo’s areas of legal practice, experience
or interest
as it were would cover legislation connected to family law. The
applicant's conduct constituted an inappropriate, malevolent
and
improper response. The divorce proceedings did not advance smoothly
and swiftly and the applicant did not wish to cooperate,
did not
comply with the Uniform Rules of Court and acted obstructively. The
applicant attacked the second respondent and Dr M[...]
K[...]
personally and threatened them on several occasions. In
correspondence addressed to the second respondent the applicant
said,
inter alia
, the following:
15.1 “
Trust me
Sir, you will account for your conduct even if its the last thing
that I do.  I will take you to the High Court for
not being a
fit and proper person to practise law.”
15.2 The applicant
informed Dr M[...] K[...] to dig two graves when she goes to war, as
she may need a grave herself.
[16]
It is against the abovementioned background that
the applicant's complaint against the second respondent
must be
examined. It was evident that the complaint by the applicant was
motivated by his annoyance at the second respondent for:
16.1 not complying with
his demands;
16.2 not advising Dr
M[...] K[...] in accordance with his dictates; and
16.3 not advising and
forcing Dr M[...] K[...] to return to the matrimonial home.
[17]
The applicant seems to blame the second
respondent, unjustifiably so, for the fact that Dr M[...]
K[...] had
left the matrimonial home; his son has “digressed”, his
daughter experienced anxiety, his reputation had
been tainted; and he
had suffered indignity. The applicant alleges that he has produced
irrefutable proof of the second respondent's
contravention of the
abovementioned provisions of the Code of Conduct. The first
respondent submits that to contrary no o such
evidence has been
provided and it cannot be found in either the complaint or the
annexures thereto.  The applicant has failed
to provide
prima
facie
evidence of misconduct on the part of the second respondent
the applicant should pay the costs of this application on the
attorney
and client scale as the application is ill-advised and
patently without merit; constitutes an abuse of the Court process, is
vexatious;
and has not been brought
bona fide
. The second
respondent replied to the applicant within reasonable time limits and
therefore his allegations were unfounded.
[18]
The  applicant’s
proposal  sent  “in  mediation”  was
rejected  by
the  client. The applicant contends that
the assertion that the client is not legally obliged to return to his
residence is
legally unsound. When the applicant’s threats had
not deterred the client from suing for divorce.  The applicant
then
proceeded to threaten the Second Respondent in the following
manner:
“
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…”
[19]
It is clear that if the second respondent failed to adhere to the
applicant’s instructions; the threat
of disciplinary action by
the first respondent would loom large over the head of the second
respondent and even materialize. The
applicant persists with
unsolicited approaches made toward the second respondent for the
express purpose of having the second Respondent
take the applicant’s
instructions.  The applicant’s advances toward the second
respondent totally disregard and
seek to undermine the client’s
rights to independent legal counsel.  The applicant prioritizes
his own interests and
seeks to procure the assistance of the second
respondent in prioritizing his interests at the expense of the second
respondent’s
client.  The applicant’s conduct is
reprehensible, inconsistent and incompatible with the client’s
rights to access
the Court through an independent legal
practitioner.  The applicant is not entitled to issue
instructions to the second respondent
nor is he entitled to demand
that the second respondent carry out same.
[20]
The applicant took issue with summons in that the applicant had been
emotionally and psychologically abusive
towards the client.
In an attempt to persuade the second respondent of his good nature
the applicant liberally shared
his own views of himself with the
second respondent, issuing the Second Respondent with an ultimatum
that he explain himself as
to what swayed him to draft particulars of
claim including the allegations of abuse. Not only does the Applicant
attempt to persuade
the second respondent of  his  good
nature,  but  the  applicant’s expectation is
that the
Second respondent’s point of departure in attending
to  the  instructions  received  by  Dr
M[...]
K[...]  ought to  be  his  account of
events. The applicant’s conduct, if it were to be permitted,
would
make a mockery of the independence of legal practitioners and
compromise the client’s rights to access to the Courts and
legal representation.
[21]
The second respondent submitted that in presiding  over
the  applicant’s
complaint,  for  the
first  respondent  to  have found in favour of the
applicant, the following
presuppositions would have been required to
have been made:
21.1 that the Applicant
was entitled to issue instructions to the attorney of Dr M[...]
K[...]    (the
Second
Respondent)   in   respect   of
the   living arrangements
of  the
parties,  the  parenting  plan  and  the
allegations traversed in the divorce
summons and particulars of claim
through  the Applicant’s erstwhile attorney Mrs
Ramakgaphola;
21.2 That the second
respondent was obliged to adhere to instructions issued by the
applicant  to  him  in
respect  of
the    living  arrangements  of  the
parties,  the  parenting
plan  and  the
allegations  traversed  in  the  divorce summons
and particulars of claim;
21.3 That the second
respondent was obliged to adhere to instructions issued by the
applicant  to  him,  through
Mrs
Ramakgaphola,  in  respect  of  the living
arrangements of the parties, the parenting plan and the
allegations
traversed in the divorce summons and particulars of claim;
21.4 That,
notwithstanding  allegations  of  emotional  and
psychological  abuse contained
in  the
particulars  of  claim,  Dr  M[...] K[...]
was  compelled  to reside with
the applicant until such a
time that a divorce was granted;
21.5 That  Dr
M[...] K[...]  was  legally  obliged  to
return  to  the  applicant’s
residence (the
matrimonial home);
21.6 That  the
applicant’s  communication  to  the
effect  that  the  Social
Worker had advised
that the matter now requires the intervention of the Courts; however,
in the interim the lawyers
must mediate
, did not
contemplate the mediation  of  issues  addressed
in  the  parenting  plan.  Further,
that
the applicant’s instruction to his erstwhile attorney to engage
in mediation with the second respondent and the
subsequent carrying
out if this instruction did  not  contemplate  the
mediation  of  issues
addressed  in  the
parenting plan;
21.7 That the mediation
between lawyers referred to by the Social Worker did not contemplate
the issues addressed in the parenting
plan;
21.8 That
the   second   respondent’s
obligation   to   maintain
the
highest standards of integrity and  honesty  contemplated
at paragraph 3.1 of the Code would allow for
him to take instructions
from the applicant and the applicant’s erstwhile attorney;
21.10 That the
Constitution and the principles and values enshrined therein, as
contemplated  at  paragraph  3.2
of  the
Code,  would  be  upheld  by  the second
respondent  in  the
event  that  he
acceded  to  the  applicant’s instruction to
advise Dr M[...] K[...] to return
to his residence;
21.11 That
the   interests   of   Dr
M[...] K[...]   would
have   been
treated   as paramount, as contemplated at paragraph 3.3 of
the Code, by the second
respondent acceding to the demands of the
applicant to explain himself and  account  to  the
applicant
regarding  the  allegations
contained  in  the particulars of claim;
21.12 That the applicant
was present at, participated in or somehow had access to the
interactions between the second respondent
and the client at their
consultations   so   as  to   be
in  a
position   to
positively   aver  that   the instructions
given
by   the   client
to   the   second   respondent
do
not substantiate  the  allegations  of
abuse  contained  in  the  summons  as
contemplated
in paragraphs 9.7, 9.7.1 and 9.7.2 of the Code;
21.13 That  it
is  appropriate  for  the  applicant  to
seek  redress  with
the  first respondent
in  relation   to  an  allegation  of
non-compliance
with   the Magistrate Court
Rules pertaining to the particularity of pleadings (Rule 6); and,
that the first respondent
is vested  with the requisite
jurisdiction to entertain such a dispute;
21.14 That the second
respondent, in his affidavit responding to the applicant’s
complaint,   made   false

statements   knowing   them   to
be   false   in contravention

of    section    9
of    the    Justices

of    the    Peace
and Commissioners of Oaths Act No 16 of 1963. In this regard

paragraphs 72 -82  of  the  second  respondent’s
answering  affidavit  provide
a  complete
response.
[22]
It submitted that the first respondent in observing its
obligation not to infringe the Bill of Rights was enjoined to:
22.1 Recognize Dr M[...]
K[...]’s rights to equality before the law, inclusive of the
right to equal protection and benefit
of the law;
22.2 Recognize that the
right to equality includes the full and equal enjoyment of all rights
and freedoms;
22.3 Recognize
that  no  person  may  unfairly
discriminate  directly  or  indirectly
against anyone
on one or more of the grounds referred to in section 9 (3). Gender,
sex,  marital  status,
conscience,  belief
and  culture  are  listed  as grounds of
discrimination in section 9 (3);
22.4 Recognize the fact
that Dr M[...] K[...] has inherent dignity, and the right to have her
dignity respected and protected;
22.5 Recognize  the
fact  that  Dr  M[...] K[...]  has  the
right  to  bodily
and psychological  integrity,
inclusive  of  the  right to  security  in
and  control
of her body;
22.6 Recognize
the  fact  that  Dr  M[...] K[...]  has
the  right  to  freedom
of movement and
residence including the rights to reside anywhere in South Africa;
22.7 Recognize the fact
that Dr M[...] K[...] has the right to have the dispute between
herself and the Applicant before the Divorce
Court and Children’s
Court resolved by the application of law decided in a fair public
hearing72.
[23]
The second respondent submitted that applicant is
no more deserving of protection of the first respondent than she is.
Secondly,
the applicant’s complaint loses sight of the fact
that the  second  respondent  owes  specified

professional  obligations toward Dr M[...] K[...], as his
client, in the discharge of the mandate furnished to him and the

applicant  who  has  no  direct  claim
to  any entitlements  owed  by  the
second
respondent  to  him.
THE
APPLICABLE LAW
Non-Joinder
[25]
It
is now settled law that any party who has a direct and substantial
interest in the subject matter must be joined in the proceedings
to
safeguard their interests.
[6]
The
Supreme Court of Appeal
in
Absa
Bank Ltd v Naude
NO
[2015]
ZASCA 97
at para
1.
, formulated
the test for non-joinder as follows:
“
The
test whether there has been non-joinder is whether a party has a
direct and substantial interest in the subject matter of the

litigation which may prejudice the party that has not been joined.”
[26]        In
light of the above, if the answer is in the affirmative, the party
that has
a direct and substantial interest in the subject matter must
be joined in the proceedings as failure to do so may result in the

matter not being heard. If the answer is in the negative, a court may
depending on the circumstances of the case, proceed to adjudicate

over the case as the outcome will not have a dire impact on third
parties who are not cited in the proceedings.
[27]        There
is what is referred to as a “necessary joinder”, where
the
failure to join a party amounts to a non-joiner and the court can
decline to hear such an application until such joinder has been

effected and/or “
the
parties have consented to be bound by the judgment or waived their
right to be joined.”
[7]
Further, there is what is referred to as the “joinder as a
matter of convenience, where the joinder of the party was
permissible
and would not give rise to misjoinder”.
[8]
The
code of Conduct
[28]
3.3.2 of code of conduct states that:
“
3.
Legal practitioners, candidate legal practitioners and juristic
entities shall –
3.3
t
reat the interests of their clients as paramount, provided that
their conduct shall be subject always to
:
3.3.1
their duty to the court;
3.3.2
the interests of justice;
3.3.3
observance of the law; and”
[29]
3.13 of code of conduct states that:
“
3.13
remain reasonably abreast of legal developments, applicable laws and
regulations, legal theory and the common law,
and legal practice in
the fields in which they practise;”
[30]
9.2 of code of conduct states that:
“
A
legal practitioner shall not, in giving advice to a client, advise
conduct that would contravene any law; more particularly, a
legal
practitioner shall not devise any scheme which involves the
commission of any offence.”
[31]
9.7 of the code of conduct states that:
“
9
.7
A
legal
practitioner
shall
in
the
composition
of
pleadings
and
of
affidavits
rely upon the facts given to him or her
by the instructing attorney or client, as the case may be, and in so
doing:
9.7.1shall
not
gratuitously
disparage,
defame
or
otherwise
use
invective;
9.7.2
shall not recklessly make averments or
allegations unsubstantiated by the information given to the legal
practitioner.”
PAJA
[32]
Section 6 of PAJA sets out when a person can institute
Judicial
review of administrative action as follows:
“
6
(1) Any person may
institute proceedings in a court or a tribunal for the judicial
review of an administrative action.
(2) A court or tribunal
has the power to judicially review an administrative action if-
(a)
the administrator who took it-
(i)
was not authorised to do so by the empowering provision;
(ii) acted under a
delegation of power which was not authorised by the empowering
provision; or
(iii)
was biased or reasonably suspected of bias;
(b)
a mandatory and material procedure or
condition prescribed by an empowering provision was not complied
with;
(c)
the action was procedurally unfair;
(d)
the action was materially influenced by
an error of law;
(e)
the action was taken-
(i)
for a reason not authorised by the empowering provision;
(ii)
for an ulterior purpose or motive;
(iii)
because irrelevant considerations were taken into account or relevant
considerations were not considered;
(iv)
because of the unauthorised or unwarranted dictates of another person
or body;
(v)
in bad faith;
(vi)
arbitrarily or capriciously;
(f)
the action itself-
(i)
contravenes a law or is not authorised by the empowering provision;
or
(ii)
is not rationally connected to-
(aa)
the purpose for which it was taken;
(bb)
the purpose of the empowering
provision;
(cc)
the information before the
administrator; or
(dd)
the reasons given for it by the
administrator;
(g)
the action concerned consists of a
failure to take a decision;
(h)
the exercise of the power or the
performance of the function authorised by the empowering provision,
in pursuance of which the administrative
action was purportedly
taken, is so unreasonable that no reasonable person could have so
exercised the power or performed the function;
or
(i)
the action is otherwise
unconstitutional or unlawful.
(3) If any person relies
on the ground of review referred to in subsection (2)
(g)
, he
or she may in respect of a failure to take a decision, where-
(a)
(i)
an administrator has a duty to take a decision;
(ii)
there is no law that prescribes a period within which the
administrator is required
to take that decision; and
(iii)
the administrator has failed to take that decision,
institute
proceedings in a court or tribunal for judicial review of the failure
to take the decision on the ground that there has
been unreasonable
delay in taking the decision; or
(b)
(i)     an
administrator has a duty to take a decision;
(ii)
a law prescribes a period within which the administrator is
required
to take that decision; and
(iii)
the administrator has failed to take that decision before the
expiration of that period,
institute proceedings in
a court or tribunal for judicial review of the failure to take the
decision within that period on the ground
that the administrator has
a duty to take the decision notwithstanding the expiration of that
period.”
[33]
In
Pepcor Retirement Fund and Another
v Financial Services Board
2003 (6) SA 38
(SCA
)
the Supreme Court of Appeal held that
administrative decision has to be taken on an accurate factual basis
as a result of which
a material mistake of fact renders an
administrative decision subject to review. The court held at
paragraph 32 that:
"Judicial
intervention has been limited to cases where the decision was arrived
at arbitrarily, capriciously or ma/a fide or
as a result of
unwarranted adherence to a fixed principle or in order to further an
ulterior or improper purpose; or where the
functionary misconceived
the nature of the discretion conferred upon him and took into account
irrelevant considerations or ignored
relevant ones; or where the
decision of the functionary was so grossly unreasonable as to warrant
the inference that he had failed
to apply his mind to the matter:
Johannesburg Stock Exchange v Witwatersrand Nigel Ltd and Another
1988 (3) SA 132
(A) at 152C-D; Hira and Another v Booysen and Another
1992 (4) SA 69
(A) at 938 -C. There are decisions in other
jurisdictions, however, which go further."
[33]
The factual mistake is required to be uncontentious and objectively
verifiable. If there is a
material error of fact it will then make a
decision subject to review if the relevant decision has been made in
ignorance of the
true facts material to that decision or for not
considering relevant material and/or all of the material provided
and/or personal
circumstances
[9]
.
[34]
In
Rustenburg Platinum Mines Ltd v Commission for Conciliation,
Mediation and Arbitration
2007 (1) SA 576
(SCA)
at
para [34] it was held that:
“
Once
the bad reasons played an appreciable or significant role in the
outcome, it is in my view impossible to say that the reasons
given
provide a rational connection to it.”
[35]
An error of law which has a material impact on the decision renders
the decision subject to review
[10]
where it was decided that a material error of law is an error that
influence the outcome of a decision.
[36]
Section 33(1) of the Constitution of the Republic of South Africa,
108 of 1996, gives anyone
a right to administrative action that is
procedurally fair. Section 6(2)(c) of PAJA allows review of an
administrative action on
the ground that the action was procedurally
unfair. Hoexter points out that procedural fairness is a principle of
good administration
where context is all important. She states that
"the
content of fairness is not static but must be tailored to the
particular circumstances of each case
[11]
.
Principle of
legality
[37]
The principle of legality requires rational decision-making. Both the
process by which the decision
is made and the decision itself must be
rational
[12]
.
[38]
In Fedsure Life Insurance v Greater
Johannesburg Transitional Metropolitan Council
[1998] ZACC 17
;
(1999 (1) SA 374
(CC))
– where the Constitutional Court held that the
exercise of public power is only legitimate when it is lawful. The
principle
of legality has expanded and encompasses several other
grounds of review, including lawfulness, rationality, undue delay and
vagueness
(see Hoexter “Administrative Justice in
Kenya: Learning from South Africa’s Mistakes” 2018
62(1) Journal
of African Law 105 123).
[39]
In the case of
Law Society of South Africa v President of the
Republic of South Africa
(2019 (3) SA 30
(CC)
the
Court in dealing with the point of irrationality referred to the case
of
Masetlha
v President of the RSA
[2007] ZACC 20
;
(2008 (1)
SA 566
(CC)) (Masetlha)
.
It was held that the
principle does not encompass the requirement of procedural fairness.
It was, therefore, essential to distinguish
between these two
requirements. Procedural fairness provides that a decision-maker must
grant a person who is likely to be adversely
affected by a decision a
fair opportunity to present his or her views before any decision is
made. Procedural rationality provides
that there must be a rational
relation not only between a decision and the purpose for which the
power was given, but also between
the process that was followed in
making the decision and the purpose for which the power was given
(par 63). The Court held the
following at paragraph 64:
“
The
proposition in Masetlha might be seen as being at variance
with the principle of procedural irrationality laid down
in
both Albutt and Democratic Alliance. But it is not so.
Procedural fairness has to do with affording a party likely
to be
disadvantaged by the outcome the opportunity to be properly
represented and fairly heard before an adverse decision is rendered.

Not so with procedural irrationality. The latter is about testing
whether, or ensuring that, there is a rational connection between
the
exercise of power in relation to both process and the decision itself
and the purpose sought to be achieved through the exercise
of that
power.”
[40]
The critical issue in that case was not whether a
fair hearing was given or not. Instead, the critical issue
was
whether the process followed before the deciding effectively to
suspend the Tribunal and deprive it of its existing jurisdiction
to
hear individual complaints was rationally connected to the purpose
for which the power to amend the Treaty had been given to
him. The
Court found that it was not.
ANALYSIS AND
FINDINGS
[41]
It was not clear from the reading of the notice of
motion that the applicant grounds of review were, however from
the
reading of the papers in entirety the applicant
relied
on section 6(1)(e)(iii) and 6(1)(e)(vi)
of
PAJA.
[42]
On the point of the non-joiner of the Investigating Committee
was
not a necessity as the judgment of this Court does not have the
effect of taking the committee’s jurisdiction as that

jurisdiction falls under the first respondent who is a party to the
current proceedings.
[43]
With regards to the applicant’s contention that the first
respondent misled him by advising him
on how he should submit his
appeal and later on 4 November 2020 advising him that the first
respondent did not have an appeal structure
as envisaged in terms of
the Act was confirmed by the first respondent in its answering
affidavit. However, in the same letter
the applicant was advised that
he can exercise his civil remedies in this regard which the applicant
through this application has
done. Therefore, I find no prejudice has
been caused to the applicant in regard to the first ground of review.
[44]    Section
6(2)(e)(iii) of PAJA: The decision was taken because irrelevant
considerations were taken into account.
The applicant did not take
this Court into his confidence on what irrelevant considerations the
first respondent had taken into
account in reaching its decision and
what relevant considerations were not considered.
[45]
Section 6(2)(e)(vi) of PAJA: The decision was arbitrary and
capricious as it was not based on the true facts,
again the applicant
fails to identify what facts were not true or misconstrued by the
first respondent. This Court cannot consider
facts and evidence that
are not before it.
[46]
The applicant submitted his complaint to the first
respondent, the first respondent requested written submissions
from
the applicant and then advised the applicant he failed to provide
prima facie evidence of misconduct on part of the second
respondent.
Notably, the second respondent is not the applicant’s attorney
and is his wife’s attorney in the pending
divorce proceedings
that were instituted by his wife. Rule 3.3 of the Code of Conduct
clearly states that legal practitioners must
“
t
reat
the interests of their clients as paramount”
.
The applicant is not the second respondent’s client and
therefore there is no duty on the second respondent to the applicant

and this rule therefore does not apply.
[47]    The
applicant requested reasons and was provided with a report but has
asserted before this Court that no reasons
were given. This is
contradictory and this submission must be rejected. It is clear that
a report was given and attached to the
founding papers.
[48]
The applicant claims the second respondent committed perjury as he
made submission on the summons
and particulars of claim regarding the
issue of abuse the applicant alleged subjected the second
respondent’s to and therefore
acted against the Rule 9.2 and
9.7 Code of Conduct as the facts provided to him where
unsubstantiated. In saying so the applicant
has not taken this Court
into his confidence as to how the averments in the pleadings are
unsubstantiated or provide any evidence
of same in order to review
the first respondent’s decision that there was no misconduct by
the second respondent.
[49]
The applicant took issue with the fact that the
second respondent is not qualified to mediate and/or draft
parenting
plans. The second respondent is a qualified Legal practitioner and
this is confirmed by his submission of his complaint
to the first
respondent which oversees the conduct of legal practitioners and the
profession. Again the applicant fails to identity
how the second
respondent is not suitably qualified and provide proof. I agree with
the first respondent that parenting and mediation
plans are drafted
by persons with far lesser expertise, and in fact sometimes by
parties themselves.  The second respondent
is a qualified legal
practitioner and there is no evidence to suggest that he is not
legally capable. In any event, the Office
of the Family Advocate has
oversight over mediation and parenting plans and that the Court as
the upper guardian of all children
in matters involving children
require the recommendation of the Office of the Family Advocate in
making its determinations. Therefore,
the fact that the second
respondent drafted the parenting plan did not exclude the authority
of the Family Advocate or Court nor
did the second respondent breach
any conduct rules in doing so.
[50]
The applicant alleged that the second respondent
was guilty of misconduct by virtue of Rule 9.2 and 9.3.
This Rule
states that a legal practitioner may not give advice to his or her
client that may contravene any law or devise a scheme
which involves
the commission of an offence. The legal Practitioner can give the
client on advice as to whether any act, omission
or conduct
contravenes any law. The applicant does not state what advice the
second respondent gave his client, the applicant’s
wife, that
contravened a law or what law was contravened.
[51]
I am satisfied that there was no evidence of misconduct on part of
the second respondent and
that the decision of the first respondent
did not act irrational, arbitrarily or capriciously. I see no reason
why the costs should
not follow the result.  I grant the
following order:
1.
The application is dismissed with costs.
Sardiwalla
J
Judge
of the High Court
Appearances:
For the Applicant:
The applicant
appeared in person
For the Second
Respondent:
Kalipa Mafungo
Instructed by:
Mafungo Attorneys
[1]
Annexure
“KMG4”: Record Vol 2 at pg 272.
[2]
Annexure
“KMG5”: Record Vol 2 at pg 273-276
[3]
Annexure
“KMG6”: Record Vol 2 at pg 277
[4]
Annexure
“KMG10”: Record Vol 6 at pg 652
[5]
Annexure
“KMG1”: Record Vol 1 at pg 64-65.
[6]
Bowring
NO v Vrededorp Properties CC
2007
(5) SA 391
(SCA)
para at 21
[7]
Mahlangu v Mahlangu and another [2020] ZAMPMHC 5 at para 5.
[8]
Ibid
[9]
Minister of Home Affairs and Others v Somali Association of South
Africa and Another
2015 (3) SA 545
(SCA)
[10]
Section
2(d)
of
PAJA & Hira and Another v Booysen and Another
1992
(4) SA 69
(A
[11]
Hoexter
supra
p
3-6
[12]
Democratic  Alliance v President of the Republic of South
Africa and Others
2013
(1) SA 248
(CC)
para [33] -  [34] & [36] - [37]