Randell v Legal Practice Council (3375/2021 ; 2803/2023) [2024] ZAECMKHC 103 (1 October 2024)

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[2024] ZAECMKHC 103
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Randell v Legal Practice Council (3375/2021 ; 2803/2023) [2024] ZAECMKHC 103 (1 October 2024)

FLYNOTES:
PROFESSION – Attorney –
Readmission
–
Convicted
of fraud and served 13 months in jail – Assessment by
clinical psychologist regarding his remorse and restorative

justice – However, no indication that applicant sought
reconciliation with the victims – Took up employment at
two
firms without obtaining LPC’s prior written consent –
Applicant failed to discharge onus of demonstrating
that he is fit
and proper person to be readmitted – Application dismissed –
Legal Practice Act 28 of 2014
,
s 33(4)(b).
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
Of
interest
CASE
NO. 3375/2021
In
the application of:
MICHAEL
WHARTON
RANDELL

Applicant
(for
his readmission as a legal practitioner in terms of
section
24(2)
of the
Legal Practice Act 28 of 2014
)
and
THE
LEGAL PRACTICE
COUNCIL
Intervening party
AND
CASE
NO.2803/2023
In
the matter between:
MICHAEL
WHARTON
RANDELL
Applicant
and
THE
LEGAL PRACTICE
COUNCIL

Respondent
JUDGMENT
LAING
J
[1]
The applicant has brought two applications. The first is for his
readmission
to practice and re-enrolment as a legal practitioner; the
second is for,
inter alia
, the review and setting aside of the
respondent’s decisions to refuse consent for the applicant to
be employed at either
of the legal practices nominated in his
request. The issues are closely intertwined, and it is convenient for
both applications
to be decided together.
Background
[2]
The facts are mostly undisputed. They have been canvassed
ad
nauseam
in the extensive civil and criminal litigation that
precedes this matter and shall not be repeated in detail. It remains
necessary,
however, to provide a summary thereof.
[3]
The applicant is a well-known legal practitioner from Gqeberha. He
was
admitted and enrolled as an attorney on 29 May 1979, working at
various local firms before starting his own practice as a sole
practitioner. The applicant was a successful litigator with a special
interest in education law and mostly represented schools,
unions,
educators, education officials, parents, and SGBs, operating
frequently on a
pro bono
or contingency basis. In his founding
affidavit, he averred that his practice was community-driven and
guided by the pursuit of
human rights and the fulfilment of
constitutional promises and statutory obligations. Many of his cases
are reported.
[4]
Separately and some 25 years ago, the applicant was the
deputy-chairperson
of the school governing body (‘SGB’)
for the Greenwood Primary School. The chairperson at the time, Mr
Michel Lascot,
and the principal, Mr Patrick Shelver, approached the
applicant about the possible purchase of immovable property that
adjoined
the school. The property was owned by Mr Lascot’s aunt
and was the last remaining property in central Port Elizabeth (as it

was then) with any real development potential. Neither Mr Lascot nor
Mr Shelver had sufficient funds to purchase it. The property
had been
advertised on the market for R750,000 but Mr Lascot’s aunt was
willing to reduce the price to R500,000 if the school
benefitted from
the transaction. Consequently, the formation of a trust was proposed,
with Mr Lascot, Mr Shelver, and the applicant
as trustees and the
school as the sole beneficiary. The applicant prepared the trust deed
and registered the Greenwood Property
Trust on 21 April 1999.
[5]
I pause to mention that it was common cause that the three trustees
had
discussed and planned the subdivision of the property prior to
the formation of the trust. The school had needed space at the time

and would benefit from the use of the existing dwelling; the
remainder of the property would be developed, but for the exclusive

benefit of the trustees.
[6]
The trust purchased the property shortly after its registration,
funding
the purchase price of R 500,000 with a bank loan secured by a
first mortgage bond. It leased the property to the school, which used

the dwelling as a library and an after-care centre. The trust used
the rental to pay the bond instalments. Shortly afterwards,
the
trustees instructed architects to prepare a development plan, which
entailed the subdivision of the property as originally
intended. The
resulting plan made provision for the trust’s continued lease
of the dwelling to the school but Mr Lascot,
Mr Shelver, and the
applicant would develop the remainder of the property; this involved
the construction of townhouses for a capital
outlay of approximately
R11,400,000. The development was not intended for the benefit of the
school.
[7]
The project stalled. Nothing happened for several years until the
trustees
resolved to amend the trust deed to appoint themselves as
additional beneficiaries.
[8]
On 21 April 2006, the trustees sold the subdivided remainder of the
property
to a developer for R3,500,000. Part of the deal entailed the
developer’s construction of six new classrooms and two garages

on the school premises, which would expand the size of the school and
generate additional fee income. The developer paid the sum
of
R2,300,000 to the trust; the amount was distributed equally amongst
the trustees. The remainder of the purchase price was paid
as a
combination of cash amounts and set offs against the value of two
townhouses to be constructed on the property, in relation
to which
the trustees were granted an option to purchase.
[9]
Subsequently, the trust’s auditors came across various
irregularities
in its books of account. Pagdens Attorneys carried out
an investigation which revealed that, except for Mr Lascot, Mr
Shelver,
and the applicant, the remaining members of the SGB and the
staff at Greenwood Primary School were unaware of how the trust had

conducted itself; they were also completely unaware of the property
transactions described above. The applicant undertook to repay,
with
interest, the proceeds of the transactions. He never did.
[10]
Arising from a police investigation into the applicant’s
conduct, criminal proceedings
were instituted against him in the
Commercial Crimes Court. He was charged with fraud.
[11]
In a parallel
development, the erstwhile Law Society of the Cape of Good Hope (‘the
Law Society’) applied for the applicant’s
name to be
struck off the roll of attorneys.
[1]
The court took issue with several aspects of the applicant’s
conduct while he was serving on the SGB. It criticised his
structuring of the property transaction so that the school
effectively paid the purchase price through its rental obligations
while
the trustees benefitted from the profits. It also criticised
the appointment of Mr Lascot, Mr Shelver, and the applicant as
additional
trustees, the concealment of their true commercial
intentions from the school and the remaining members of the SGB, and
their failure
to disclose the full details of their distribution of
the profits that resulted from the eventual sale of the remainder of
the
property.
[12]
The court found, ultimately, that the applicant had seriously
breached the fiduciary duty
that he owed to the school. His conduct,
said the court, had been carefully planned and executed over a period
of eight years and
had carried strong elements of deceit, dishonesty,
and disgracefulness. When it was uncovered, the applicant continued
to protest
his innocence and to hide behind the terms of the trust
deed, claiming ignorance of his fiduciary duty. The court held, on 14
August
2015, that the applicant was not a fit and proper person to
continue practising as an attorney and struck his name off the roll.

The applicant applied unsuccessfully for leave to appeal in the
Supreme Court of Appeal and later the Constitutional Court.
[13]
The above finding was followed by the applicant’s conviction
for fraud, on 20 April 2016,
in the Commercial Crimes
Court. He was sentenced to an effective period of four years’
imprisonment. His applications for
leave to appeal to both the
Supreme Court of Appeal and the Constitutional Court were, as in the
civil proceedings, unsuccessful.
The applicant began serving his
sentence on 3 December 2018, which was later reduced by presidential
decree to a period of two
years. On 10 January 2020, the applicant
was released on parole after having served 13 months in jail.
[14]
Interspersed during the
above civil and criminal proceedings were several other matters. The
trust instituted action against the
applicant and Mr Shelver for the
recovery of R2,400,000,
[2]
which
the applicant defended. The High Court subsequently issued a
restraint order in terms of the Prevention of Organised Crime
Act 121
of 1998 (‘POCA’), followed by the issuing of a
confiscation order for R550,000 in the Regional Court. This
prompted
the applicant to apply unsuccessfully for the release of a portion
thereof to fund his legal expenses. The trust later
withdrew its
action when the school received payment of R1,000,000, pursuant to
the granting of a further confiscation order in
the Regional Court.
[15]
On 4 February 2020, the applicant requested the Law Society’s
consent to his employment
as a paralegal at Randell & Associates.
The respondent pointed out that the employer was also required to
submit a request
and to stipulate the functions that the applicant
would be expected to perform. The applicant provided a list of his
envisaged
duties on 12 February 2020, which chiefly entailed the
provision of assistance to a director at the practice, Mr Du-Wayne
Stoltz.
Nothing more was heard from the respondent.
[16]
On 26 October 2020, the applicant asked a director in the
respondent’s Eastern Cape
office, Mr Alfred Hona, for guidance
on the requirements with which he would need to comply for purposes
of readmission and re-enrolment.
The request met with no response.
The applicant contacted Mr Hona again on 11 December 2020, suggesting
that he travel to East
London to meet with him. This, too, yielded no
response. Similar attempts made by a colleague to elicit guidance
also proved unsuccessful.
[17]
On 22 October 2021, the applicant launched his application for
readmission and re-enrolment.
He wrote to Mr Hona on 21 November
2021, drawing his attention to the application and asking whether the
respondent had any comment
thereon. Mr Hona responded this time,
saying that a sub-committee of the newly elected council for the
respondent would consider
the application and make its
recommendations.
[18]
On 13 December 2021, the applicant approached the Legal Practitioners
Fidelity Fund (‘the
Fund’) to ascertain whether there
were any adverse records in relation to his fidelity status. The Fund
informed him, on
16 February 2022, that he was still indebted to it
for legal costs with which the Fund had reimbursed the respondent in
relation
to the application for his name to be struck off the roll.
In the absence of payment or an acceptable arrangement, the Fund
could
not support his application for readmission and re-enrolment.
[19]
On 17 March 2022, the respondent explained to the applicant that it
could not support his
application for the reasons set out in a letter
of the same date. The applicant dealt with the reasons in terms of a
supplementary
affidavit that he delivered on 12 May 2022.
The respondent opposed the matter, delivering its answering papers on
3 October 2022.
The application was set down for
hearing during the following year.
[20]
On 3 February 2023, the applicant informed Mr Hona that he had left
Mr Stoltz’s practice
to take up employment at O’Brien
Inc. His duties would remain the same as before. Mr Hona responded on
14 February 2023,
saying that the new employer was required to make a
separate request for consent; he emphasised that until such time as
the respondent
had dealt with the request, the applicant was not
permitted to be employed at a law firm. On 20 March 2023, Mr Hona
sent further
communication to the applicant. He drew the latter’s
attention to the relevant provisions of the Legal Practice Act 28 of

2014 (‘the LPA’), reiterating that the respondent’s
prior written consent was necessary. Mr Robin O’Brien
sent a
letter to Mr Hona on the same date, confirming that he had offered
employment to the applicant as a paralegal and proposing
the duties
that the applicant would be expected to fulfil. He requested
confirmation that this was acceptable.
[21]
The request found its way to the respondent’s Oversight
Committee, which made its
recommendations to the respondent on 5
April 2023. This was not disclosed to the court at the time that the
matter was heard on
4 May 2023. The implications of section 33(4)(b)
of the LPA were raised at the hearing and the matter was postponed to
allow the
parties an opportunity to address the court’s
concerns.
[22]
On 12 May 2023, the applicant wrote to Mr Hona, explaining why he had
commenced his employment
without the respondent’s consent, and
undertaking not to continue with such employment. He went on to
request the necessary
consent, as well as reasons for the
respondent’s delay and reasons if the request was declined.
Further supplementary papers
were delivered on 5 July 2023.
[23]
On 8 July 2023, the respondent decided to refuse the applicant’s
request for consent.
It conveyed this information to the applicant on
14 July 2023, setting out its reasons in an email to that effect.
This prompted
the applicant to launch his review application.
Issues
to be decided
[24]
Concerning the application for readmission and re-enrolment, the
issue is straightforward.
The court must decide whether it is
satisfied that the applicant is a fit and proper person to rejoin the
legal profession.
[25]
The provisions of the Promotion of Administrative Justice Act 3 of
2000 (‘PAJA’)
are pertinent to the review application.
The applicant must demonstrate the existence of one or more of the
review grounds, listed
under section 6(2), to allow the court to
review and set aside the respondent’s decisions to refuse
consent for the applicant
to be employed at either of the nominated
legal practices. The court will also need to determine, in terms of
section 8, the nature
of the order to be granted.
[26]
The relevant legal principles are discussed below.
Legal
framework
[27]
The Attorneys Act 53 of 1979 (“the Attorneys Act”)
applied when the Law Society
made application for the applicant’s
name to be struck off the roll. In terms of section 15(3)(b), a
court was granted
discretion to readmit and re-enrol an attorney who
had been struck off the roll, provided that he or she was a ‘fit
and proper
person’.
[28]
The LPA came into effect
on 1 February 2015, repealing the Attorneys Act. Its purpose is set
out in section 3, which includes the
provision of a legislative
framework for the transformation and restructuring of the legal
profession that embraces the values
underpinning the Constitution and
ensures that the rule of law is upheld.
[3]
The LPA was also designed to protect and promote the public
interest,
[4]
to create a
framework for the development and maintenance of appropriate
professional and ethical norms and standards for the rendering
of
legal services, and to regulate the admission and enrolment of legal
practitioners.
[5]
The
last-mentioned aspect is addressed under section 24, where the
requirement that he or she be ‘a fit and proper person’

has survived.
[6]
Interestingly,
however, the LPA makes no provision for the readmission and
re-enrolment of a person, as was the case previously
under the
Attorneys Act.
[29]
In
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others: In re Hyundai
Distributors (Pty)
Ltd and Others v Smit NO and Others
,
[7]
Langa DP held as follows:
‘
Section 39(2) of
the Constitution provides a guide to statutory interpretation under
this constitutional order. It states:
“
When interpreting
any legislation, and when developing the common law or customary law,
every court, tribunal or forum must promote
the spirit, purport and
objects of the Bill of Rights.”
This means that all
statutes must be interpreted through the prism of the Bill of Rights.
All law-making authority must be exercised
in accordance with the
Constitution. The Constitution is located in a history which involves
a transition from a society based
on division, injustice and
exclusion from the democratic process to one which respects the
dignity of all citizens, and includes
all in the process of
governance. As such, the process of interpreting the Constitution
must recognise the context in which we
find ourselves and the
Constitution’s goal of a society based on democratic values,
social justice and fundamental human
rights. This spirit of
transition and transformation characterises the constitutional
enterprise as a whole.
…
The purport and
objects of the Constitution find expression in s 1, which lays out
the fundamental values which the Constitution
is designed to achieve.
The Constitution requires that judicial officers read legislation,
where possible, in ways which give effect
to its fundamental
values.’
[8]
[30]
The above principles were
emphasised in
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others
,
[9]
where Ngcobo J stated that the Constitution was the starting point
for the interpretation of any legislation. Every court is required
to
promote the spirit, purport, and objects of the Bill of Rights.
[10]
Within the context of the present matter, the stated purpose of the
LPA is primarily the transformation and restructuring of the
legal
profession in a way that recognises and advances the values of the
Constitution. Importantly, the LPA must also protect the
rule of law.
In an application for the readmission and re-enrolment of a legal
practitioner, the requirement that he or she be
a fit and proper
person must be interpreted in accordance with the above principles.
[31]
During the
pre-constitutional era, the courts approached the test based on
whether the applicant was a proper person to be allowed
to practise
as an attorney or advocate and whether his or her readmission would
involve no danger to the public and no danger to
the good name of the
profession.
[11]
In
Kudo
v Cape Law Society
,
[12]
the court referred to the heavy onus placed on an applicant to
demonstrate that, by reason of a complete and permanent reformation,

he or she was in no way likely to fail in the discharge of the
obligations that pertain to the legal profession. Van Winsen J
observed that the profession of an attorney was an honourable one and
that the court was the guardian of its integrity. The learned
judge
went on to list the factors that a court would consider in
determining whether the applicant had successfully discharged
the
onus.
[13]
This was echoed in
Law
Society, Transvaal v Behrman
,
[14]
where Corbett JA stated:
‘
Where a person
whose name has previously been struck off the roll of attorneys on
the ground that he was not a fit and proper person
to continue to
practise as an attorney applies for his readmission, the onus is on
him to convince the Court on a balance of probabilities
that there
has been a genuine, complete and permanent reformation on his part;
that the defect of character or attitude which led
to his being
adjudged not fit and proper no longer exists; and that, if he is
readmitted, he will in future conduct himself as
an honourable member
of the profession and will be someone who can be trusted to carry out
the duties of an attorney in a satisfactory
way as far as members of
the public are concerned.’
[15]
[32]
The same broad approach has persisted in our constitutional era. An
applicant is saddled
with the burden of proving to a court that he or
she has entirely mended his or her ways and is ready to rejoin the
ranks of a
profession that respects a clear distinction between right
and wrong behaviour and that places a high premium on both personal
and professional integrity.
[33]
This is evident from the
stance taken by the Supreme Court of Appeal in
Swartzberg
v Law Society, Northern Provinces
,
[16]
where Ponnan JA reiterated the factors mentioned in
Kudo
to be considered when
deciding whether an applicant has discharged the onus.
[17]
The learned judge also confirmed the extent of the onus that was set
out in
Behrman
,
before stating:
‘
Allied to that
[i.e. the extent of the onus] is an assessment of the appellant’s
character reformation and the chances of
his successful conformation
in the future to the exacting demands of the profession that he seeks
to re-enter. It is thus crucial
for a court confronted with an
application of this kind to determine what the particular defect of
character or attitude was. More
importantly, it is for the appellant
himself to first properly and correctly identify the defect of
character or attitude involved
and thereafter to act in accordance
with that appreciation. For, until and unless there is such a
cognitive appreciation on the
part of the appellant, it is difficult
to see how the defect can be cured or corrected. It seems to me that
any true and lasting
reformation of necessity depends upon such
appreciation.’
[18]
[34]
The above principles
remain relevant and are reflected, for example, in
Gqomo
v Law Society of the Cape of Good Hope
,
[19]
emanating from this division. Most recently, in
Ex
Parte Gaone Jack Siamisang Montshiwa
,
[20]
the Supreme Court of Appeal returned to the meaning of ‘fit and
proper person’. Dambuza ADP held as follows:
[21]
‘
The expression
“fit and proper” is not defined in the LPA. There is also
no single test for determination of what constitutes
a fit and proper
person for purposes of admission into the legal profession. Section 5
of the LPA, however, sets out one of the
objectives of the Act as to
“determine, enhance and maintain appropriate standards of
professional practice and ethical conduct
of all legal practitioners
and all candidate legal practitioners”. In terms of s 24(2)(c)
of the LPA only fit and proper
persons may be admitted by courts as
legal practitioners.
…
In
Australian
Broadcasting Tribunal v Bond
,
[22]
the court described the expression fit and proper as follows:
“
The expression
‘fit and proper person’, standing alone, carries no
precise meaning. It takes its meaning from context,
from the
activities the person is or will be engaged in and the ends to be
served by those activities. The concept of ‘fit
and proper’
cannot be entirely divorced from the conduct of the person who is or
will be engaging in those activities. However,
depending on the
nature of those activities, the question may be whether improper
conduct has occurred, whether it is likely to
occur, whether it can
be assumed that it will not occur, or whether the general community
will have confidence that it will not
occur. The list is not
exhaustive but it indicates that, in certain contexts, character
(because it provides indication of likely
future conduct) may be
sufficient to ground a finding that a person is not fit and proper to
undertake the activities in question.”
[23]
’
[35]
The principles set out
above comprise the framework within which the present matter must be
decided. The central question remains,
however, whether the applicant
is a fit and proper person to practise law.
[24]
Whether
the applicant can be readmitted and re-enrolled
[36]
It would not be unreasonable to remark that the papers filed by the
parties during the
proceedings have become unnecessarily prolix.
Admittedly the parties were afforded an opportunity to file
supplementary affidavits
to address the issue raised at the hearing
on 4 May 2023, but the impression remains that there is a
considerable amount of repetition.
From the submissions made,
however, there are several aspects that need to be evaluated against
the measures set out in the case
law.
[37]
At the outset, the applicant’s comprehensive description of the
circumstances that
gave rise to his criminal conviction and the
removal of his name from the roll must be acknowledged. The
respondent has taken issue
with certain omissions, but these are
immaterial when viewed against the overall degree of detail provided
by the applicant. The
respondent has also been critical of the
applicant’s strenuous opposition to the various criminal and
civil proceedings,
suggesting that it reflected a lack of
appreciation for the wrongfulness of his conduct. This might be so,
as will be discussed
later, but it could also be said that the
applicant was merely exercising the right to defend himself in a
desperate attempt to
stave off the far-reaching implications of a
criminal conviction and the striking of his name from the roll.
[38]
The applicant’s imprisonment and the shame that he experienced
cannot be trivialised.
He has been adequately punished for the wrongs
that he committed. Equally, it is necessary to recognise the
assistance that the
applicant gave to inmates and officials during
his incarceration, the further studies that he undertook, the parole
that was granted
to him, and the efforts that he made to reintegrate
himself into the profession by completing the relevant practice
management
training and by opening communication with the respondent.
Whereas the respondent has criticised the applicant’s failure
to settle the legal costs owed to the Fund, which are substantial,
his loss of regular income and the resulting financial predicament

that this precipitated cannot simply be disregarded. It must also be
acknowledged, too, that a lapse of six years from the date
upon which
the applicant’s name was removed until the launching of the
present application was sufficient to have allowed
him time to have
reflected upon his failings and to have addressed them meaningfully.
The extent to which he has done so, however,
must be considered more
closely.
[39]
Notwithstanding the
comprehensive description of the underlying circumstances that led to
the formation of the trust, the purchase
of the adjoining property,
and its subsequent subdivision, sale, and development, there is a
conspicuous absence of a proper explanation
for why the applicant
conducted himself as he did at the time. Inasmuch as he has referred
to various provisions of the trust deed
to emphasise its
discretionary nature and has pointed out that the school ultimately
benefitted from the sale of the subdivided
remainder of the property,
the applicant does not seem to have accounted adequately for his
failure to disclose the full extent
of the trustees’ dealings
and the true nature and intent of the property transactions. The
remaining members of the SGB and
the school itself were simply kept
in the dark. The applicant’s explanation that he verily
believed that his conduct was
bona
fide
at
the time does not ring true. Admittedly, he has subsequently admitted
his wrongdoing and conceded that his conduct was dishonest
but there
remains a disquieting failure on his part to have squarely confronted
the court’s finding that he seriously breached
his fiduciary
duty towards the school and that his conduct was marked by ‘strong
elements of deceit, dishonesty and disgracefulness’.
[25]
The applicant has, instead, repeatedly emphasised that he has served
his time and paid his dues. The unfortunate impression is
that the
applicant has never completely accepted that he was guilty of the
failings that formed the subject of so many of the criminal
and civil
proceedings that followed.
[40]
An important component of the applicant’s approach in the
present matter is his reliance
on an assessment prepared by a
clinical psychologist, Mr Flip de Jager. It appears to have been
based on,
inter alia
, a pre-sentence report, the applicant’s
founding affidavit, the supporting affidavits of a parole officer,
former clients,
professional colleagues, and a personal evaluation.
The following findings are pertinent:
‘
He is deeply
remorseful and appreciates the seriousness of his wrongdoing. He also
acknowledges that he has damaged the good standing
and reputation of
the legal profession as a whole by his conduct.’
[41]
The report went on to state:
‘
The possibility of
recidivism is unlikely due to the fact that the applicant is a well
adapted, goal directed, clear thinking individual
with no serious
psychopathology present. He seems to have acted out of character in
the commitment of his crime, the latter being
supported by affidavits
from friends and former colleagues. The applicant has no history of
other serious misconduct. He is truly
remorseful about his actions
and the hurt it caused others.
According to Batley
(2005), restorative justice is about addressing the hurts and needs
of both victims and offenders in such a
way that both parties, as
well as the communities which they are part of, are healed. The five
R’s of restorative justice
are: facing
R
eality,
accepting
R
esponsibility, expressing
R
epentance,
knowing
R
econciliation, and making
R
estitution.
The applicant fulfils
four of these criteria. He is currently seeking reconciliation by
fully acknowledging his wrongful actions
without taking refuge in
excuses, as well as by his application to the Law Society to be
re-admitted as a legal practitioner so
that he can serve his
profession as well as his community. His greatest ambition is to be
seen by the Court as a fit and proper
person and to be re-instated on
the role of legal practitioners.
It is my professional
opinion that the applicant be re-admitted onto the role of legal
practitioners as it will allow him to take
the final step in
restorative justice by reconciling with both society and the Legal
Profession.’
[26]
[42]
A clinical psychologist’s
assessment may indeed be used by a court to facilitate the correct
assessment of character defects
or failings. Counsel for the
applicant referred to
Johannesburg
Society of Advocates v Edeling
,
[27]
where the Supreme Court of Appeal relied on such an assessment to
decide whether an applicant had discharged the onus of proving
that
he was a fit and proper person to be readmitted and re-enrolled as an
advocate.
[43]
It is trite, of course,
that an expert’s opinion can be of invaluable assistance in the
adjudication of a matter. There are
any number of subjects that fall
a considerable distance outside the ambit of a judge’s
qualifications, experience, and expertise,
with the implication that
an expert’s views can certainly help to make sense of a set of
circumstances that would usually
be encountered within a specialised
field of training and practice. Importantly, however, a court is not
bound by such views. The
court alone must decide the issues upon
which the expert has provided an opinion.
[28]
In
Bee v
Road Accident Fund
,
[29]
Seriti JA observed that:
‘
The facts on which
the expert witness expresses an opinion must be capable of being
reconciled with all other evidence in the case.
For an opinion to be
underpinned by proper reasoning, it must be based on correct facts.
Incorrect facts militate against proper
reasoning and the correct
analysis of the facts is paramount for proper reasoning, failing
which the court will not be able to
properly assess the cogency of
that opinion. An expert opinion which lacks proper reasoning is not
helpful to the court.’
[30]
[44]
In the present matter, counsel for the respondent argued,
inter
alia
, that Mr de Jager failed to engage properly with the
underlying facts that gave rise to the applicant’s conviction
and the
removal of his name from the roll. He failed, moreover, to
engage with the reasons for the applicant’s conduct and why it

was out of character. I am inclined to agree. Of some significance,
too, is that Mr de Jager based his assessment only on the facts

presented to him by the applicant. What is concerning is that the
respondent was never approached to verify the facts presented;
what
is even more concerning is that the views of the SGB and the school
were never sought. Consequently, it cannot be said without
hesitation
that the expert’s opinion was based on a complete and correct
set of facts. The helpfulness of the assessment
is questionable.
[45]
A further area of concern
is that, in relation to the concept of restorative justice,    Mr
de Jager seemed to concede
that the applicant has only met four of
the five stipulated criteria.
[31]
He has yet to become reconciled to the respondent and to society at
large. As counsel for the respondent pointed out, moreover,

restorative justice is more relevant to the criminal justice system
than to an application for the applicant’s readmission
and
re-enrolment. Furthermore, the views of the trust, the SGB, and the
school itself, appear to have been ignored. There is no
mention of
them. There is no indication that the applicant has ever sought, let
alone achieved, reconciliation with the victims
of his misconduct.
[46]
This invites the question
of whether the applicant is genuinely remorseful and whether he
appreciates the damage done to the victims
in question. The subject
was addressed in
Johannesburg
Society of Advocates and Another v Nthai and Others
,
[32]
where Ponnan JA held:
‘
While Mr Nthai
makes the bare allegation that he accepts that greed and dishonesty
played a role in his transgressions, and that
he has reflected upon
and repented for these character flaws, his reliance on depression
and anxiety as a contributory factor obscures
the fact that Mr Nthai
has not properly come to grips with the real elements of his
transgressions and of his inherent character
flaw. As it was pointed
out in
S
v Matyityi
:
[33]
“
There is,
moreover, a chasm between regret and remorse. Many accused persons
might well regret their conduct, but that does not
without more
translate to genuine remorse. Remorse is a gnawing pain of conscience
for the plight of another. Thus genuine contrition
can only come from
an appreciation and acknowledgement of the extent of one’s
error. Whether the offender is sincerely remorseful,
and not simply
feeling sorry for himself or herself at having been caught, is a
factual question. It is to the surrounding actions
of the accused,
rather than what he says in court that one should rather look.”’
[34]
[47]
The absence of the victims’ voices is a worrying aspect of the
present matter. Whereas
the applicant alleged that the proceeds of
the property transactions had been repaid, this seems to have been
more the consequence
of the Regional Court’s confiscation order
than anything else. There is a puzzling silence about what steps, if
any, the
applicant took to demonstrate the genuineness of his
contrition and to repair the harm that he caused to his relationship
with
the trust, the SGB, and the school. Not a single affidavit, let
alone a letter, has been submitted by the victims to support the

application.
[48]
It is, however, the applicant’s activities after his release on
parole that give
rise to the most serious of the obstacles facing
him. More specifically, it is undisputed that he took up employment
at Randell
& Associates, and later at O’Brien Inc, without
obtaining the respondent’s prior written consent.
[49]
The provisions of section 33(4)(b) provide as follows:
‘
(4)
A legal practitioner who is struck off the Roll or suspended from
practice may not–
(a)
…
(b)
be employed by, or otherwise be engaged, in a legal practice without
the
prior written consent of the Council, which consent may not be
unreasonably withheld, and such consent may be granted on such terms

and conditions as the Council may determine.’
[50]
The requirements could not be clearer. Counsel for the applicant
argued, nevertheless,
that the respondent’s failure to react
decisively either to his request for consent or to his list of
envisaged duties, submitted
on 4 and 12 February 2020 respectively,
amounted to implied consent. From the respondent’s email dated
11 February 2020,
however, the argument is not so convincing.
The text thereof indicated that:
‘
Mr Alfred Hona
(our director), has confirmed that
your
employer is required to submit a request to the Council for
permission to proceed with your employment
,
the employer should specifically state your functions.
Kindly attach to the
application, judgment and court order in terms of which you were
struck from the roll, judgment/record of parole
proceedings,
documentary proof of your parole with any conditions attached thereto
from the department of correctional services.
Please be advised that
you
cannot commence employment with a firm of attorneys
until the application has
been considered by Council…’
[35]
[51]
The respondent explained in its papers that it never received a
request from the applicant’s
prospective employer, Mr Stoltz;
the latter also failed to stipulate the functions that the applicant
would be expected to perform.
Consequently, the respondent did not
consider the matter further. From the explanation given and the
content of the respondent’s
email, it cannot be said that its
action (or inaction) amounted to implied consent.
[52]
If there had been any doubt on the applicant’s part about the
respondent’s
stance, then this would have been dispelled when
the latter delivered its answering papers on 3 October 2022. To
that effect,
it unequivocally drew the applicant’s attention to
the requirements of section 33(4)(b) of the LPA. Prior written
consent
was required before the applicant could be employed by or
otherwise be engaged in a legal practice. Inexplicably, however, the
applicant proceeded to compound the error of his approach. The
timeline in this regard is of significance. On 3 February 2023, the

applicant wrote to Mr Hona, informing him that he had left Mr
Stoltz’s practice and joined O’Brien Inc; his duties

would remain unchanged.  Mr Hona responded on 14 February 2023,
saying as follows:
‘
Please note that
the new
employer must seek the written consent to employ
.
In the request, the position in which you be employed, the measures
that will be put in place to ensure that you do not have access
to
the trust account and deal with trust funds, to ensure that there is
no confusion among the members of the public as to whether
you are an
attorney or not, as well as the nature of the duties that you will be
performing. It will greatly appreciate if the
request can also deal
with the allegations contained in the email below whilst in your
previous employ.
This
application for Council’s consent is required in terms of
section 33(4)(b)
of the
Legal Practice Act, No. 28 of 2014
in terms
of which a legal practitioner who is struck off the roll or suspended
from practising may not be employed in a legal practice
without the
prior written consent of the Council
.
On receipt of the application, same shall be tabled for consideration
by Council. Until such time that the said application has
been
received and considered, please note that
you
may not be employed in a legal practice
.’
[36]
[53]
On 20 March 2023, Mr Hona sent a further email, again drawing the
applicant’s attention
to the provisions of
section 33(4)(b).
The respondent’s stance, at this stage, was unequivocal. By
then, it would have been expected that the applicant realised
the
danger in which he found himself and would have withdrawn straight
away from his employment at O’Brien Inc to comply
with the
statutory prohibition. This never happened. It was only on 12 May
2023, after the court had expressed its concerns, that
the applicant
wrote to Mr Hona, apologizing for having proceeded without obtaining
the respondent’s prior written consent,
and undertaking not to
be engaged in employment with O’Brien Inc or any other firm of
attorneys until the consent had been
obtained.
[54]
Admittedly, the respondent’s conduct in the matter cannot
escape criticism. Its failure
to have provided direction or simply to
have responded effectively to the applicant’s communication on
4 and 12 February
2020 undoubtedly contributed to any sense of
inconclusiveness on the applicant’s part. This notwithstanding,
counsel for
the applicant conceded during argument that there was no
evidence that the applicant made a concerted effort at the time to
deal
with any uncertainty by emailing or telephoning or travelling to
the respondent’s East London offices to insist on a clear
and
unambiguous response. The applicant cannot hide behind the
respondent’s shortcomings.
[55]
The fact remains that the applicant contravened the statutory
prohibition imposed under
section 33(4)(b)
of the LPA. This is the
elephant in the room. It might be tempting to consider the matter
sardonically, saying that the infringement
was trivial, especially
when contrasted with other forms of professional misconduct. The
provisions of
section 93
of the LPA are, however, pertinent:
‘
(1)
Any person who, in a practice, without the written consent of the
Council, employs in any capacity
any person who has been struck off
the Roll or suspended from practice, while that person remains struck
off or suspended, commits
an offence and is liable on conviction to a
fine or imprisonment for a period not exceeding one year.
(2)
Any person who contravenes the provisions of
section 33
commits an
offence and is liable on conviction to a fine or to imprisonment for
a period not exceeding two years or to both such
fine and
imprisonment.’
[56]
The requirements of
section 33(4)(b)
are not to be taken lightly. The
applicant’s attitude to compliance was, if not flippant, then
certainly careless, possibly
even reckless. For a person in his
situation, eager to rejoin the profession but surely aware of the
intense scrutiny to which
his activities would be subject, it is
astonishing that he proceeded with his employment at Randell &
Associates and later
at O’Brien Inc without the respondent’s
prior written consent. His decision to do so immediately compromised
not only
his intentions for readmission and re-enrolment but also
attracted the risk of further criminal investigation.
[57]
The purpose of the LPA
is,
inter
alia
,
to provide a legislative framework for the transformation and
restructuring of the legal profession that embraces the values
underpinning the Constitution and ensures that the rule of law is
upheld.
[37]
There appears to
be no reason why, when implementing section 24(2)(c), a court cannot
consider an applicant’s attitude and
conduct towards the rule
of law and decide whether either would militate against the court’s
exercising its discretion in
his or her favour. A fit and proper
person is, first and foremost, expected to abide by the law.
[58]
I pause to mention,
briefly, the argument made by counsel for the applicant to the effect
that the respondent’s decision to
oppose the application fell
to be reviewed under PAJA. This was because,
inter
alia
,
the respondent failed to conduct an interview with the applicant to
acquire insight into his character and failed to deal with
Mr de
Jager’s assessment, thereby bringing the decision within the
ambit of section 6(2)(e)(iii) of PAJA.
[38]
The argument is not
without merit. In
Behrman
,
Corbett JA confirmed that a court would give considerable weight to
the attitude of the Law Society in relation to the readmission
of an
applicant.
[39]
Such an
approach was endorsed in
Jelal
v South African Legal Practice Council
,
[40]
where Mngadi J added that the weight to be given thereto would be
determined by the soundness of the reasons for its attitude.
Within
the context of the present matter, if the respondent’s
reasoning was irrational or otherwise flawed, as counsel has

contended, then little weight could be attached thereto. This is so.
There is, however, a limit to counsel’s argument in
that it
tends to overlook the wide nature of the discretion granted to the
court to decide whether the applicant has discharged
the onus. The
court remains the protector and guardian of the integrity of the
legal profession. The provisions of section 24(2)(c)
of the LPA
stipulate that the court, not the respondent, must be satisfied that
the applicant is a fit and proper person.
[59]
From the available evidence, it is not apparent that the applicant
has properly accounted
for his conduct as a trustee. There seems to
be a reluctance on his part to accept the findings of the court in
relation to the
serious breach of his fiduciary duties and to admit,
unflinchingly, the ‘deceit, dishonesty and disgracefulness’
that
accompanied the matter. There is a troubling absence, too, of
the views of the trust, the SGB, and the school, and what steps, if

any, the applicant took to repair the harm done and to achieve
reconciliation. The genuineness of his contrition must be called
into
question. Of most concern, however, is the applicant’s
inexplicable contravention of the statutory prohibition. This
has
emerged, ultimately, as the most devastating of the various aspects
canvassed in the papers and during argument; it cannot
be ignored, it
cannot be wished away. The applicant’s attitude and conduct in
this regard must be viewed within the context
of the purposes of the
LPA and the imperative to uphold the rule of law.
[60]
Notwithstanding the applicant’s historical commitment to a
community-driven practice
of law, defined by a clear recognition and
appreciation of constitutional values, the factors discussed in the
preceding paragraphs,
when viewed cumulatively, prevent him from
discharging the heavy onus placed on him to demonstrate that he is a
fit and proper
person to be readmitted and re-enrolled as a legal
practitioner. This is not necessarily the end of the road for the
applicant,
however, and it is to the remaining application that I now
turn.
Whether
the respondent’s decisions can be reviewed and set aside
[61]
The applicant seeks a declarator that the respondent’s conduct
in relation to his
request for written consent to be employed at
Randell & Associates, subsequently at O’Brien Inc,
constitutes administrative
action, and that this be reviewed and set
aside. He also seeks a declarator that he has a right to be employed
at O’Brien
Inc in accordance with the duties and assurance
contained in a letter to that effect, and that the respondent be
directed to issue
the necessary consent in terms of section 33(4)(b)
of the LPA.
[62]
As a point of departure, it is important to emphasise that the
approach to the review application
differs from that regarding the
application for readmission and re-enrolment. This is obvious, but
the distinction was at risk,
at times, of becoming obscured by the
considerable volume of papers filed by the parties. The provisions of
PAJA are relevant,
in terms of which the court will be required to
determine whether any of the grounds listed under section 6(2) are
available to
the applicant to afford him the relief sought. The
provisions of section 8(1) allow the court to make any order that is
just and
equitable.
[63]
For the sake of convenience, the applicant’s attack on the
respondent’s failure
to decide his request in relation to
employment at Randell & Associates will be considered first. In
that regard, counsel for
the respondent argued that the issues in
relation thereto are moot.
[64]
In
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
,
[41]
Ackermann J held that:
‘
A case is moot and
therefore not justiciable if it no longer presents an existing or
live controversy which exist if the court is
to avoid giving advisory
opinions on abstract propositions of law.’
[42]
[65]
This division considered
the subject a few years later in
Ntame
v MEC for Social Development, Eastern Cape, and Two Similar
Cases
.
[43]
In that regard, Plasket J found that the exercise of pronouncing the
administrative action or inaction concerned to have been invalid

would have had no practical effect and would have been academic.
[44]
[66]
In the present matter, it
is undisputed that the applicant has left Randell & Associates.
Furthermore, the director whom the
applicant previously assisted as a
paralegal, Mr Stoltz, has been interdicted from practising, pending
the outcome of disciplinary
proceedings brought against him.
[45]
There is no indication from the papers that the applicant intends to
resume his employment at the firm in question or that Randell
&
Associates has made any offer in that regard. Consequently, there is
no longer an existing or live controversy; a determination
would have
no practical effect. If anything, then the issues pertain more to the
application for readmission and re-enrolment than
to the present
application. They seem to have been raised merely to present the
respondent in an unfavourable light and to buttress
the applicant’s
criticism of its conduct overall. The issues are moot.
[67]
I proceed, at this stage, to the applicant’s attack on the
respondent’s decision
regarding the applicant’s
employment at O’Brien Inc. The director at the legal practice
in question wrote to Mr Hona
on 20 March 2023, indicating that he had
offered employment to the applicant as a paralegal. His letter went
on to say that:
‘
I have proposed
that his duties consist of the following:
1.
Minuting statements from clients.
2.
Drafting documents for use in court and in reporting to clients.
3.
Liaising with clients to arrange consultations and to minute
reports
from them thereafter.
4.
Assisting with case research.
To ensure that there is
no confusion among the members of the public as to whether Mr Randell
is an attorney or not, he will not:
1.
Appear in court.
2.
Sign documents.
3.
Sign process.
4.
Have access to my trust account or deal with trust funds. Our

bookkeeper is solely responsible for the running of the trust account
under my guidance.
Kindly confirm that this
is acceptable to the Council.’
[46]
[68]
In due course, Mr Hona emailed Mr O’Brien on 14 July 2023,
setting out the reasons
for why the respondent had declined his
request. The relevant portion of the correspondence stated:
‘…
The
Council resolved to decline the application for the following
reasons–
1.
The objects of the Council as set out in section 5 of the LPA
include
the promotion and protection of public interest, enhancing and
maintaining the integrity and status of the legal profession.
The
court, in striking the name of Mr Randell from the roll made very
serious findings that his conduct was fraudulent, dishonest,

unreliable, and brought the legal profession into disrepute.
2.
A complaint of misrepresentation was received by the Eastern
Cape
Office of the LPC from a member of the public, M Mpengesi, against Mr
M Randell. It appears from this complaint that when
Mr Randell worked
at Randell & Associates he created an impression to the members
of the public with whom he had consulted
that he was a legal
practitioner. This allegation of M Mpengesi, was also brought to your
attention on 14 February 2023, with
a request to address same in
the application to employ Mr Randell. However, despite the request to
address this allegation of misrepresentation
by Mr Randell whilst in
the employ of Randell & Associates, same was not addressed in the
application.
In the circumstances, the
Council came to the conclusion that the employment of Mr M Randell in
a legal practice in whatever capacity
would create an impression or
confusion among the members of the public that he is a legal
practitioner and would create a conducive
environment which would
enable him to hold himself out as a legal practitioner especially
taking into account the nature of his
proposed duties which include
minuting statements from clients and drafting documents for use in
court, hence the decision to decline
the application.’
[47]
[69]
It appears to have been
common cause that the respondent never filed a minute of the
underlying deliberations. The above email was
accepted as a true
reflection of the basis upon which the respondent made its
decision.
[48]
[70]
Counsel for the applicant
raised several arguments as to why the respondent’s decision
was unreasonable. To that effect, counsel
referred extensively to
Walus v
Minister of Justice and Correctional Services and Others
,
[49]
where the Constitutional Court dealt with the respondent’s
decision to refuse to grant parole to the appellant, previously

convicted for the murder of the then Secretary-General of the South
African Communist Party, Mr Chris Hani. In sentencing the appellant

to death, the trial court held that ‘the atrocious crime
demands the severest punishment which the law permits.’ Zondo

CJ, writing for the court, considered the respondent’s decision
and held as follows:
‘…
In his
answering affidavit, all the Minister said was in effect that it was
not his position that the applicant would never be released
on
parole. He never explained how he could release the applicant on
parole in the future when the reasons that prevented him from

releasing the applicant on parole in 2020 would still be present and
would not have changed. What the Minister says in effect is
that in
2020 he was prevented, by the nature and seriousness of the crime and
the trial court and Supreme Court of Appeal’s
sentencing
remarks, from releasing the applicant on parole, but sometime in the
future he could release him on parole, despite
the fact that the
nature of the crime, its seriousness and the courts’ sentencing
remarks would not have changed. Earlier
I pointed out that the
Department’s policy requires that, as far as possible, a
prisoner should be placed on parole as soon
as possible after he or
she has reached the date when he or she can be considered for parole.
In this regard we must remember that
the applicant’s date when
he became eligible to be considered for placement on parole was in
2005. That is 17 years ago.
That is close to 20 years ago.
Furthermore, I also highlighted earlier that the Department’s
policy makes it clear that a
prisoner must be evaluated fairly and
justly for placement on parole.
…
The question that
immediately arises then is this: if, in the future, the Minister can
or will release the applicant on parole on
the same facts as those
which prevailed in 2020 when he denied him parole, does that mean
that he will have reached two different
and mutually exclusive
conclusions on the same facts? If he could reach the conclusion to
release the applicant on parole on these
facts in the future, why is
it that he did not release him in 2020 on the same facts? If the
Minister were to release the applicant
on parole on the same facts in
the future, how will he justify his two conflicting conclusions on
the same facts? The Minister
did not explain any of this in his
answering affidavit. His failure to explain this renders his decision
to deny the applicant
parole inexplicable. If it is inexplicable, it
follows like night follows day that it is irrational. There is no
connection between
the exercise by the Minister of his power and the
purpose for which the legislation conferred that power on him. If
there is no
connection between the Minister’s exercise of the
power and the purpose of the power conferred upon him, his decision
is
irrational.’
[50]
[71]
It was the contention of
applicant’s counsel in the present matter that immutable past
facts cannot drive rational decision-making
alone when later facts
are also relevant. I tend to agree. By referring exclusively to the
court’s findings and remarks in
relation to the application for
the removal of the applicant’s name from the roll, the
respondent locked itself into a position
where such circumstances, as
relevant as they were some eight years ago and as immutable as they
are now, would always prevent
the respondent from granting the
consent sought by the applicant. The respondent simply ignored the
relevance of any later events.
The applicant’s wrongdoing would
forever remain the albatross around his neck.
[51]
[72]
This was the type of reasoning and approach that came under heavy
criticism in
Walus
. Consequently, there was, in the present
matter, too tenuous a link between the respondent’s exercise of
the power given
under section 33(4)(b) of the LPA, on the one hand,
and the purpose of the legislation, on the other, which includes the
protection
and promotion of the public interest. The respondent
failed to consider properly the intervening period between the date
of the
court’s findings and remarks, and the date upon which it
declined the request.
[73]
There is no indication
that the respondent weighed up the relevance of the applicant’s
conduct during his imprisonment, including
the assistance that he
gave to inmates and officials, and the further studies that he
completed. No attention seems to have been
given to the applicant’s
obtaining of parole; it is not apparent that the respondent ever
sought the Parole Board’s
comment or ever investigated the
conditions attached to the granting of parole. It is also not
apparent what significance the respondent
attached, if any, to the
practice management training that the applicant undertook. The
respondent seems to have ignored, completely,
the applicant’s
changed personal circumstances and many of the events that occurred
during the period of almost eight years
that lapsed after the court’s
findings and remarks. Its decision was, consequently, irrational.
Alternatively, the respondent
only considered factors that were, if
not entirely irrelevant, then certainly not as relevant as they were
almost a decade ago.
[52]
[74]
Closely allied to this
was counsel’s contention that the respondent did not, to use
the language of PAJA, consider relevant
considerations. There is no
indication that the respondent explored whether the applicant’s
experience and skills could have
benefitted the legal profession or
the extent to which the risks associated with the applicant’s
employment could have been
mitigated by imposing the necessary terms
and conditions, as envisaged under section 33(4)(b) of the LPA. This
could have been
achieved by providing the applicant with a reasonable
opportunity to make representations, either in person or in writing,
before
deciding.
[53]
Mindful,
especially, of the applicant’s age and narrow area of
expertise, as well as the serious financial and social implications

of an adverse decision,
[54]
this was not a situation where a departure from the requirements for
procedurally fair administrative action was either reasonable
or
justifiable.
[55]
[75]
Regarding the complaint lodged by a member of the public, Mr Mzukisi
Mpengesi, the applicant
demonstrated why his allegations were
unfounded. The signage had been altered from ‘Randall &
Associates’ to ‘Nolands
Law’ prior to Mr Mpengesi’s
contact with the firm, and all correspondence and fee statements
referred to Mr Stoltz;
his supporting affidavit in that regard was
never challenged. There is no evidence that the applicant ever
misrepresented himself.
Importantly, however, the respondent conceded
that the full details of the complaint were never properly brought to
the applicant’s
attention. An oblique reference, at best, was
made to it in Mr Hona’s email of 14 February 2023.
[76]
For the respondent to
have asserted that it was not obliged to have referred the complaint
to the applicant under the provisions
of the Rules,
[56]
because he no longer fell within the respondent’s jurisdiction,
was cynical at best and disingenuous at worst. The applicant
was
admittedly no longer a legal practitioner, but he was entitled to
have been given a fair opportunity to deal with the complaint
before
the respondent decided his request. This was never done. The
respondent made its decision solely on Mr Mpengesi’s
version of
events. The decision, at the most fundamental of levels, ignored the
principle of
audi
alterem partem
.
It was procedurally unfair.
[77]
Finally, the respondent’s
conclusion that the applicant could not be employed at a legal
practice in any capacity whatsoever
cannot, in any way, be described
as reasonable. It simply turned a blind eye to other possibilities in
terms of which the applicant’s
experience and skills could have
been harnessed to serve the public interest, provided that
appropriate steps were taken to ensure
that the integrity and status
of the legal profession were enhanced and maintained.
[57]
The respondent’s concern that such employment would create
confusion or be conducive to the applicant’s holding himself

out as a legal practitioner was not based on any facts. It also
failed to explore ways in which such risk could be minimised.
Consequently, the decision was both irrational and so unreasonable
that no reasonable person could have made it.
[58]
[78]
Whether viewed
individually or cumulatively, the reasons advanced by the respondent
do not pass muster. The decision to withhold
written consent to the
applicant’s request in relation to employment at O’Brien
Inc was unreasonable and in contravention
of section 33(4)(b) of the
LPA.
[59]
It was also made
under circumstances that gave rise to several of the grounds listed
under section 6(2) of PAJA, as already discussed,
thereby
establishing a basis upon which it could be reviewed and set aside.
Relief
and order
[79]
Moving to the nature of relief to be granted, I have already
indicated that the applicant
has regrettably failed to discharge the
onus of demonstrating that he is a fit and proper person to be
readmitted and re-enrolled
as an attorney. His application cannot
succeed, notwithstanding his previous success as a legal
practitioner, his awareness of
and sensitivity to constitutional
values, and his clear passion for the law.
[80]
In relation to the
applicant’s review application, the issues regarding employment
at Randell & Associates are moot. I
am satisfied, however, that
the respondent’s decision to refuse the applicant’s
request for written consent regarding
employment at O’Brien Inc
constitutes administrative action and that this was unreasonable and
procedurally unfair.
[60]
The
applicant has demonstrated, moreover, that there are sufficient
grounds in terms of PAJA upon which to review and set aside
such a
decision.
[61]
[81]
Counsel for the applicant
urged the court to grant substitutionary relief. To that effect,
section 8(1)(c)(ii)(aa) of PAJA permits
a court to substitute or vary
the administrative action in question. Reliance was placed upon
Walus
to contend that the court
is in as good a position as the respondent to decide the matter.
[62]
In
Trencon
Construction (Pty) Ltd v Industrial Development Corporation of South
Africa Ltd and Another
,
[63]
Khampepe J dealt with the subject as follows:
‘…
A case
implicating an order of substitution accordingly requires courts to
be mindful of the need for judicial deference and their
obligations
under the Constitution…
…
To my mind, given
the doctrine of separation of powers, in conducting this enquiry
there are certain factors that should inevitably
hold greater weight.
The first is whether the court is in as good a position as the
administrator to make the decision. The second
is whether the
decision of an administrator is a foregone conclusion. These two
factors must be considered cumulatively. Thereafter,
a court should
still consider other relevant factors. These may include delay, bias
or the incompetence of an administrator. The
ultimate consideration
is whether a substitution order is just and equitable. This will
involve a consideration of fairness to
all implicated parties. It is
prudent to emphasise that the exceptional circumstances enquiry
requires an examination of each matter
on a case-by-case basis that
accounts for all relevant facts and circumstances.’
[64]
[82]
It cannot easily be refuted that the court is in possession of as
much, if not more, information
as might be necessary for it to decide
the request in relation to the applicant’s employment at
O’Brien Inc. The difficulty
is, however, that the court has
already found that the applicant failed to demonstrate that he is a
fit and proper person to be
readmitted and re-enrolled as a legal
practitioner. Consequently, the nature and extent of the respondent’s
decision, were
the matter to be remitted, are unknown. The
respondent, in giving effect to the purposes of the LPA and the
objects listed in section
5, might well be required to determine such
terms and conditions as would be necessary if it granted consent for
the applicant
to be employed at O’Brien Inc as a paralegal or
otherwise. The respondent’s decision in this regard is not a
foregone
conclusion.
[83]
Furthermore, there is
nothing unusual or untypical about the matter; the authority granted
under section 8(1)(c)(ii)(aa) is only
applicable in exceptional
cases. Despite counsel’s strident criticism of the respondent’s
conduct, the threshold between
ordinary and extraordinary
circumstances, warranting the court’s direct intervention, has
not yet been crossed. As Heher
JA remarked in
Gauteng
Gambling Board v Silverstar Development Ltd
,
[65]
remitting the matter for
reconsideration is almost always the prudent and proper course.
[66]
[84]
The only remaining aspect is that of costs. Regarding the application
for readmission and
re-enrolment, there is no reason why the general
rule should not apply; the respondent, as the successful party, is
entitled to
its costs. Turning to the review application, I am not
persuaded that the applicant can be granted the relief sought in
relation
to employment at Randell & Associates or the
substitutionary relief sought in relation to O’Brien Inc. The
applicant
was, nevertheless, substantially successful and remains
entitled to most of his costs. It would seem fair, however, to limit
these
appropriately.
[85]
Both counsel argued that
the award of costs on scale B would be justified. Mindful of the
complexity of the matter and the importance
of the relief sought to
each of the parties,
[67]
I am
satisfied that this would be a fair approach.
[86]
Consequently, the following order is made:
1.
In relation to case number 3375/2021:
(a)
the application is dismissed; and
(b)
the applicant is ordered to pay the respondent’s costs under
scale
B.
2.
In relation to case number 2803/2023:
(a)
it is declared that:
(i)
the respondent’s decision, made on 14 July 2023, to refuse
the
applicant’s request for written consent for him to be employed
at O’Brien Inc; and
(ii)
its withholding of such consent,
constitutes unreasonable
and procedurally unfair administrative action;
(b)
the above administrative action is hereby reviewed and set aside;
(c)
the matter is remitted to the respondent for reconsideration; and
(d)
the respondent is ordered to pay 75% of the applicant’s costs
under
scale B.
JGA
LAING
JUDGE
OF THE HIGH COURT
I
agree.
B
METU
JUDGE
OF THE HIGH COURT (ACTING)
APPEARANCES
For
the applicant:
Adv
Dyke SC
Instructed
by:
Netteltons
118A
High Street
MAKHANDA
Ref:
Mr Hart/liza/R173+R185)
Tel:
046 622 7149
For
the respondent:
Adv
Watt
Instructed
by:
N N
Dullabh & Co
5
Bertram Street
Makhanda
Ref:
Mr Dullabh
Tel:
046 622 6611
Date
of hearing:
30
May 2024.
Date
of delivery of judgment:
01
October 2024.
[1]
The
applicant successfully applied for the application to be stayed,
pending the outcome of the criminal proceedings. The decision
was,
however, overturned on appeal.
[2]
The
remaining trustee, Mr Lascot had passed away by the time that the
action was instituted.
[3]
Section
3(a).
[4]
Section
3(d).
[5]
Section
3(g)(i) and (ii).
[6]
Section
24(2)(c).
[7]
[2000] ZACC 12
;
2001
(1) SA 545
(CC).
[8]
At
paragraphs [21] and [22].
[9]
2004
(4) SA 490 (CC).
[10]
At
paragraph [72].
[11]
See, for example,
Ex
Parte Knox
1962
(1) SA 778
(N), at 784H.
[12]
1972
(4) SA 342 (C).
[13]
At
345E-346A. The court listed the factors as follows: the nature and
degree of the conduct which occasioned the applicant’s
removal
from the roll; the explanation, if any, provided for such conduct,
and which might mitigate or even aggravate the heinousness
of the
offence; his or her actions in relation to an enquiry into his or
her conduct, and the proceedings consequent thereon
for his or her
removal; the lapse of time between his or her removal and his or her
application for reinstatement; the activities
subsequent to his or
her removal; any expression of contrition and its genuineness; and
efforts made to repair the harm that
his or her conduct might have
occasioned to others.
[14]
1981
(4) SA 538 (A).
[15]
At
557A-C.
[16]
2008
(5) SA 322 (SCA).
[17]
See
n 13 above.
[18]
Swartzberg
,
at paragraph [22].
[19]
2020
JDR 1577 (ECG), at paragraphs 8 to 10.
[20]
2023
JDR 0647 (SCA).
[21]
At
paragraphs [34] and [35].
[22]
Australian
Broadcasting Tribunal v Bond
[1990]
HCA 33; (1990) 170 CLR 321.
[23]
At
paragraph 36.
[24]
South
African Legal Practice Council v Bobotyana
2020
JDR 2148 (ECG), at paragraph 11.
[25]
Law
Society of the Cape of Good Hope v Randell
2015
JDR 1647 (ECG), at paragraphs [60] to [68].
[26]
Sic.
[27]
2019
(5) SA 79
(SCA), at paragraphs [15] and [16].
[28]
Road
Accident Appeal Tribunal and Others v Gouws and Another
2018
(3) SA 413
(SCA), at paragraph 33. See, too,
Member
of the Executive Council for Health and Social Development, Gauteng
Province v MM on behalf of OM
2021
JDR 2278 (SCA), at paragraph [17].
[29]
2018
(3) SA 366
(SCA).
[30]
At
paragraph [23].
[31]
Mr
de Jager referred to research that conveniently described the
criteria for achieving restorative as consisting of five R’s:

facing reality, accepting responsibility, expressing repentance,
knowing reconciliation, and making restitution.
[32]
2021
(2) SA 343 (SCA).
[33]
2011
(1) SACR 40
(SCA), at paragraph 14.
[34]
Nthai
,
at paragraph [82].
[35]
Sic,
emphasis added.
[36]
Sic,
emphasis added.
[37]
Section
3(a).
[38]
The
provisions of section 6(2)(e)(iii) of PAJA permit a court to review
administrative action if it was taken because irrelevant

considerations were taken into account or relevant considerations
were not considered.
[39]
Behrman
,
at 557H.
[40]
2022
JDR 0209 (KZP), at paragraph [10].
[41]
2000
(2) SA 1 (CC).
[42]
At
paragraph [21], n 18.
[43]
2005
(6) SA 248
(E). Interestingly, this was a case in which the
applicant’s former legal practice, Michael Randell Inc,
represented the
applicant.
[44]
At
paragraph [9].
[45]
An order to that effect was made on 5 September 2023 in this
division by Lowe and Govindjee JJ, in terms of case number
2632/2023.
[46]
Sic.
[47]
Sic.
[48]
Admittedly,
in terms of the respondent’s answering affidavit there were
‘other reasons’ for declining Mr O’Brien’s

request, but these were never spelled out clearly.
[49]
2023
(2) SA 473 (CC).
[50]
At
paragraphs [80] and [81].
[51]
Counsel
for the applicant referred to Samuel Taylor Coleridge’s poem,
The
Rime of the Ancient Mariner
,
in which a sailor shoots, with a crossbow, a wandering albatross.
The killing of the bird of good omen precipitated great hardship
for
the rest of the crew, causing them to blame the mariner for their
predicament and to hang the dead bird around his neck.
[52]
See s
ections
6(2)(e)(iii) and 6(2)(f)(ii) of PAJA.
[53]
This
would have given effect to the applicant’s right to
procedurally fair administrative action, as envisaged in terms
of
section 3(2)(b) of PAJA.
[54]
The
applicant was 70 years old when the respondent made its decision.
There was no evidence that he had any employment experience
other
than in the legal sector.
[55]
See
section 3(4) of PAJA.
[56]
The
Rules of the South African Legal Practice Council were published on
20 July 2018 in terms of GN 401.
[57]
See
section 5(c) and (f) of the LPA.
[58]
See
section 6(2)(h) of PAJA.
[59]
The
provisions in question stipulate that the respondent may not
unreasonably withhold its consent to a request of such nature.
[60]
The
respondent initially averred that it was not an organ of state.
Counsel accepted in argument, however, that it was subject
to the
application of PAJA and that its decision to refuse the applicant’s
request constituted administrative action. Section
33(1) of the
Constitution provides that everyone has the right to administrative
action that is lawful, reasonable, and procedurally
fair.
[61]
The
grounds include those listed under sections 6(2)(e)(iii),
6(2)(f)(ii), and 6(2)(h).
[62]
Walus
,
at paragraph [89].
[63]
2015
(5) SA 245 (CC).
[64]
At
paragraphs [46] and [47].
[65]
2005
(4) SA 67 (SCA).
[66]
At
paragraph [29].
[67]
See
the test indicated in rule 67A(3)(b) of the Uniform Rules of Court.
a