REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION , POLOKWANE
(1)
(2)
(3) REPORTABLE : YES/NG
OF INTEREST TO THE JUDGES : ¥'.ES/NO
~.~~~~~·~······ .. ·· .. · ~
.................. ....... ~
DATE ~ 1.~~.\J.?f~IGNATURE . .. ...................... .
In the matter between:
THE SOUTH AFRICAN LEGAL PRACTICE COUNCIL
-and-
KGAKE JOHANNES MOGOFE
MOGOFE {F ,J) ATTORNEYS
Delivered 26 March 2025 CASE NUMBER : 3639/2023
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
This judgment was handed down electronically by circulation to
the parties' legal representatives by e-mail. The date and time
Date heard
Coram
BRESLER AJ:
Introduction: 2
for hand down of the judgment is deemed to be 'U:, March 2025
at 10:00 am.
27 November 2024
Bresler AJ et Pillay AJ
JUDGMENT
[1] The Applicant applied for the striking of the First Respondent from the roll of
practicing attorneys, and ancillary relief.
[2] It is quite difficult to ascertain the actual grounds on which the application is
premised. The Founding affidavit was drafted with very little particularity as to the
actual actions of the First Respondent, safe insofar as reference were made to
several annexures without highlighting the relevance of these annexures.
Essentially the Applicant is saying that the application is based on the findings and
I or rulings and/ or recommendations of its Investigating Committee and Disciplinary
Committee.
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[3] The First Respondent was charged with nine (9) different contraventions. The
Disciplinary Committee consequently found the First Respondent guilty of
contravening paragraph 3.1, 3.3, 3.5 and 12.1 of the Code of Conduct applicable to
Legal Practitioners , and a suspension of 10 (ten) years was proposed.
[4] According to the Disciplinary Committee, the First Respondent therefore committed
the following contraventions :
4.1 Contravention of paragraph 3.1 of the Code of Conduct in that he failed to
maintain the highest standards of honesty and integrity;
4.2 Contravention of paragraph 3.3 of the Code of Conduct in that he failed to
treat his client's interest as paramount ;
4.3 Contravention of paragraph 3.5 of the Code of Conduct in that he failed to
refrain from doing anything in a manner prohibited by law or the Code of
Conduct which placed or could place him in a position in which the client's
interests' conflict with his own or those of his clients.
4.4 Contravention of paragraph 12.1 of the Code of Conduct in that he, directly
or indirectly, entered into an express or tacit agreement, arrangement or
scheme of operation or any partnership (express, tacit or implied), the result
whereof is to secure for him the benefit of professional work, solicited by a
person who is not an attorney, for reward, whether in money or in kind.
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[5] Premised on the ruling of the Disciplinary Committee , the Applicant applied for the
striking of the First Respondent from the roll of Legal Practitioners. The Applicant
submitted that the First Respondent has made himself guilty of unprofessional and
dishonourable or unworthy conduct. It was furthermore submitted that the First
Respondent's conduct reveals character defects that cannot be tolerated in a
practitioner or officer of the Court and does not meet the standard of behaviour ,
conduct and reputation which is required of an 'Advocate ' (although the First
Respondent practices as an attorney).
[6] The First Respondent categorically denied that the Applicant is entitled to the relief
prayed for. The First Respondent furthermore lodged a counter application for the
review of the decisions of the Disciplinary Committee .
[7] In justification of the review of the decisions of the Disciplinary Committee , the First
Respondent stated inter alia that the findings of the said Committee were based
solely on the self-incriminating evidence of Mr. Letsoalo, who was also subjected to
the disciplinary proceedings simultaneously with the First Respondent. Mr. Letsoalo
was, however, not called as a witness during the disciplinary proceedings. Nor did
the version of Mr. Letsoalo implicate the First Respondent in the alleged unethical
conduct complained of. The objection was therefore, in general terms, that the
charges levied against the First Respondent were unsubstantiated by the evidence
before the Committee .
[8] The First Respondent also applied for the review of the Disciplinary Committee 's
findings inter a/ia on the basis that same constitutes the admission of inadmissible
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evidence and the fact that the Committee was materially influenced by an error of
law. As will be evidenced from what is stated herein under, a detailed analysis of
the merits of the review is not necessitated , having regard to the finding as to the
procedural conundrum that the First Respondent faces.
Issues that require determination:
[9] This Court is called upon to determine if the First Respondent is a fit and proper
person to continue practicing as a legal practitioner.
[1 O] The Court is furthermore called upon to determine if the decision and findings of the
Disciplinary Committee of the Applicant can, and should, be reviewed and set aside.
The Applicable Legal Principles:
Application to strike First Respondent from the roll of practicing legal practitioners
[11] As stated herein before, the Founding affidavit is quite generic. Reference was, for
instance, made in paragraph 11.2 to the 'standard of behaviour and conduct and
reputation which is required of an Advocate ' as opposed to an attorney. Moreover,
the Applicant's case was presumab ly premised on the findings of the Investigating
and Disciplinary Committee . No reference or background was provided in the
Founding affidavit as to the actual actions of the First Respondent that warrant
scrutiny by this Court.
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[12) It is trite law that a Court cannot be expected to trawl through lengthy annexures to
ascertain the actual message that the Applicant wishes to convey. Reference is
often made to the case of Swissborough Diamond Mines (Pty) Ltd and Others
v Government of the Republic of South Africa and Others1, where the
Honourable Joffe J pertinently stated:
' ... it is not open to an applicant or respondent to merely annexe to its affidavit
documentation and to request the Court to have regard to it. What is required
is the identification of portions thereof on which reliance is placed and an
indication of the case which is sought to be made out on the strength thereof.
If this were not so the essence of our established practice would be destroyed .
A party would no know what case must be met.'
[13) Having regard to the manner in which the Founding affidavit was drafted and the
lack of particularity regarding the conduct of the First Respondent , it appears that
the Applicant expects the Court to validity the findings of the Investigating and
Disciplinary without being privy to the actual conduct of the First Respondent and
without having considered the stated conduct that the Applicant alleges warrants
enquiry by the Court.
[14) Section 44(1) of the Legal Practice Act, 28 of 2014 (the 'LPA') states:
1 1999 (2) SA 279 (T)
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'(1) The provisions of this Act do not derogate in any way from the power of
the High Court to adjudicate upon and make orders in respect of matters
concerning the conduct of a legal practitioner , candidate legal practitioner or
a juristic entity. '
[15] It follows that the mere fact that there was rulings or findings made at a prior
disciplinary meeting, does not presuppose that the Court should blindly follow those
rulings and simply determine the appropriate remedy.
[16] At this juncture, it is apposite to note that applications for the striking of an attorney's
name from the roll of legal practitioners are not ordinary civil proceedings. They are
proceedings of a disciplinary nature and are sui generis. 2
[17] In Solomon v Law Society of the Cape of Good Hope3 the following was said
regarding the nature of disciplinary proceedings :
'Now in these proceedings the Law Society claims nothing for itself .. It merely
brings the attorney before the Court by virtue of a statutory right, informs the
Court what the attorney has done and asks the Court to exercise its
disciplinary powers over him... The Law Society protects the interest of the
public in its dealings with the attorneys. It does not institute any action or civil
suit against the attorney. It merely submits to the Court facts which it contends
constitutes unprofessional conduct and then leaves the Court to determine
how it will deal with this officer. '
2 Law Society, Transvaal v Matthews 1989 (4) SA 389 (T) at 393 D -E
3 1943 AD 401 at 408 -409
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[18) It is furthermore settled law that the application for the removal from the roll, or
suspension from the practice, of an attorney involves a three-staged enquiry. See
for instance the case of Malan & Another v Law Society of the Northern
Provinces4 . First, the Court needs to determine whether the alleged offending
conduct was established on a balance of probabilities . It is a factual enquiry.
Second, consideration must be given to the question, in the discretion of the Court,
if the person concerned is not 'a fit and proper person to continue to practice as an
attorney.' This involves weighing up the conduct complained of against the conduct
expected of an attorney and is a value judgment. Third, the Court is required to
consider, whether in the light of all the circumstances , the name of the attorney
concerned should be removed from the roll of attorneys or whether an order
suspending him or her from practice would suffice.
[19] In Summerley v Law Society, Northern Provinces5 the Supreme Court of Appeal
stated the following:
' ... the exercise of the discretion at the second stage "involves, in reality, a
weighing up of the conduct complained of against the conduct expected of an
attorney and, to this extent, a value judgment " . . . The third enquiry again
requires the court to exercise its discretion. At this stage the Court must
decide, in the exercise of its discretion , whether the person who has been
found not to be a fit and proper person to practice as an attorney deserves the
4 2009 (1) SA 216 (SCA) at Para 4]
5 5 2006 (5) SA 613 (SCA) at Para 2
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ultimate penalty of being struck from the roll or whether an order of suspension
from practice will suffice.'
[20] It is appropriate to note at this stage that the Applicant was urged by the Disciplinary
Committee to consider a suspension of 10 (ten) years. During the course of the
hearing, counsel for the Applicant also conceded that striking is not the appropriate
remedy in the circumstances , and that suspension might serve the intended
purpose.
[21] These submissions are irrelevant in so far as there was simply no factual basis
presented to court upon which the Court could exercise its discretion to determine
if the First Respondent is a fit and proper person or not. The mere fact that mention
is made of the existence of findings published by the Investigating Committee and
the Disciplinary Committee respectively , is not sufficient to enable the Court to make
an informed decision pertaining to the suitability of the First Respondent to continue
practice as a legal practitioner .
[22] On this basis, the Applicant's application stands to be dismissed.
Respondent's Review Application:
[23] During the course of the proceedings, this Court raised the issue that there is no
proper Application for Review before court. There is no substantial application , no
notice of motion advising the Applicant that the delivery of the record is required,
and no compliance with the general provisions pertaining to an administrative
review as contemplated in Rule 53.
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[24] In lieu of the procedural issues with the said application, this Court is of the view
that the Review application should, similarly, be dismissed.
Costs:
[25] Both the Applicant and the First Respondent showed an evident ignorance and
disregard for what is expected in proceedings of this nature. Although they were
both substantially successful in avoiding relief being granted in favour of the
opposing party, the applications are ultimately dismissed because of procedural
incompetence as opposed to meritorious opposition . On that basis, both parties
should be deprived of their costs. This should serve as a deterrent to in future
launch proceedings of this nature without ensuring due and proper procedural
compliance .
Order:
[26] In the result the following order is made:
26.1 The main application for the striking of the First Respondent is
dismissed .
26.2 The counter application for the review of the decisions of the
Disciplinary Committee is dismissed.
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34.3 Each party is ordered to pay his / it's own costs pursuant to the
dismissal of the respective applications.
I concur,
APPEARANCES:
FOR THE APPLICANT
INSTRUCTED BY
FOR THE RESPONDENT ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
Mr. ME Phooko
Moloko Phooko Attorneys
Polokwane
phokome@gmail.com
Adv. MR Maphuta
INSTRUCTED BY 12
MoganediAttorneys
Polokwane
moganedi-attorneys@mailbox .co.za