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South Africa: North Gauteng High Court, Pretoria
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[2020] ZAGPPHC 104
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Mashaba and Others v Law Society (23258/2018) [2020] ZAGPPHC 104 (20 February 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION. PRETORIA
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
CASE NO:
23258/2018
DATE:
2019/10/03
19/2/2020
In the matter
between
MP
MASHABA and
OTHERS
Applicant
and
LAW
SOCIETY
Respondent
JUDGMENT
BAQWA (J):
This Is an application for leave to appeal against a judgment handed
down by this .court on the 4
th
of April 2019 In terms of which the applicant's name was struck
from the roll of attorneys.
The applicable legislative prescript is section
17(1) of the Superior Court's act 10 of 2013 which reads as follows:
“
Leave- to appeal may only be given
where the judge or Judges concerned are of the opinion that;
(a)
The appeal would have a reasonable- prospect of success.”
I am not referring to the other subsections as
the application before us is solely based on the provisions of
section 17(1)(a-)(
i ) .
The applicant filed an application in which the
following grounds are raised:
“
The
Applicant respectfully submits that the learned Judges failed to
take
into account the explanations of the
Respondent and
his
version
which could reasonably be true.
It is
furthermore submitted that the fact
that the Applicant resigned to the allegations· levied against
him by
his
employers
it was
a
step
which
was
taken
in light thereof If Is submitted that nothing unusual or
incriminating should be held against him by reason thereof.
The Applicant further submits that once a
document is saved on Microsoft (which was the Instrument used herein)
such document
is,
what
is
termed·
generated" and
as
and
when you generate
same
so
as to
“save”
it
; versions, get modified and It should not
be
held that such document was
conceptionalised by the user.
It
is also
respectfully submitted that the
Honourable Presiding Judges overlooked the fact that on the evidence
produced, the Applicant
was
acquitted in a competent Court
without such Judgment ever having been set
asid
e .
The. Applicant
was
found not guilty of the crime o; "
FRAUD" and thus this should have persuaded the Honourable
Presiding Judges to have
had regard to the fact that all tile
available evidence had been placed before that Court and ' fraud"
was
never
proved.
It is
respectfully submitted that the “Mr
Adams” referred to In paragraph [39] of the Judgment
was
not a Judge of this Honourable Court
at the time of the hearing referred to
and
his subsequent appointment should not have weighed
as
heavily as it
did In the consideration of the
evidence given by the Applicant/Respondent.”
As clearly appears from the· above
grounds they are aimed at factual findings made by this court. It ·is
trite that
a Court of Appeal would not easily Interfere with factual
findings of a court unless it is clear from the record that those
findings
are not supported by the facts that were before that court.
Mr Groome, in his opposition to the application
and on behalf of the Law Society of the Northern Provinces (as it
then was) addressed
each of these issues and pointed out that this
court dealt in detail with the submissions of the applicant in this
matter, that
the court took into- account all the relevant
circumstances of what transpired, upon the applicant becoming aware
that his partners
had a problem with his invoices and then the
conduct subsequent to that, the different versions that were
proffered by the applicant
in the disciplinary Inquiry and In his
answering affidavit. The question then is, whether his explanations
are reasonable or credible
regarding his version that the applicant
never knew that his wife was not an advocate.
The
court has dealt with this in some detail in the Judgment. We
have nothing further to add. Having had regard to the grounds
and the
submissions made this morning by the Applicant and that of Mr Groom
on behalf of the Respondent, I am of the view that
the grounds of
appeal do not persuade us that the-re would be a reasonable prospect
of success or put in other words that an-other
court would come to a
fin ding ·different to the one reached by this Court.
In the premises I propose that the application
be dismissed with costs on an attorney and client scale.
COURT
:
I agree and it
is so ordered.
APPLICANT
:
As the court pleases
RESPONDENT
:
As the court pleases
COURT:
Court adjourns.
COURT
ADJOURNS
,