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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETORIA
( l) REPORT ABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
{3) REVISED.
04/03/2025
DATE
In the matter between: I
SIGNATURE
KAR.ABO MONTGOMERY MOKOENA
MOKOENA (KARABO) INCORPORATED
And
THE SOUTH AFRICAN LEGAL PRACTICE COUNCIL
In re:
THE SOUTH AFRICAN LEGAL PRACTICE COUNCIL
And
KAR.ABO MONTGOMERY MOKOENA
MOKOENA KARA BO INCORPORATED Case number: 49286/2020
Date: 4 March 2025
First Applicant
Second Applicant
Respondent
Applicant
First Respondent
Second Respondent
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JUDGMENT
BRAND AJ (WITH MBONGWE J concurring)
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[2] This is an application for leave to appeal against this court's judgment of 13
June 2024, in which the applicant herein was found guilty of a range of
instances of serious misconduct as legal practitioner; held not to be fit and
pr9per to be a legal practitioner ; and struck from the roll of legal practitioners
(attorneys ).
The application was brought on 31 August 2024, 41 court days after judgment
was handed down. It was in other words well out of time -it should have been
brought within 15 court days after judgment was handed down.
[3] At first, the application was not accompanied by an application for condonation
of its late filing. After this was pointed out by the respondent through a Uniform
Rule 30 and 30A notice, a second application was filed, this time with at least
a purported application for condonation of late filing.
[4] On the basis of this second notice of application for leave to appeal we must
decide two issues:
4.1 Whether the late filing of the notice of leave to appeal should be
condoned .
4.2 Whether leave to appeal should be granted.
Condonation
[5] Condonation can be granted in our discretion on good cause shown. Good
cause includes explanation of the reasons for late filing and the impact that
granting of condonation would have on the other party and refusal on the
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applicant.
The applicant offered two reasons for late filing. First, he relates that he only
came to know of the judgment, which was emailed to him on 13 June when it
was handed down, on 23 June and then needed time to read, analyse and
digest it. Second, he submits that he did not have the funds available readily
with which to acquire representation to bring the application .
[7] The former is no reason at all. The judgment was emailed to the applicant at
the email address he provided for that purpose. Had he regularly checked this
email address as one would expect, he would have come to know of the
judgment earlier. Also, having received the judgment he, as on his own version
a seasoned legal practitioner should not have required any more than the time
allowed to read the judgment , decide whether to proceed with an appeal and
prepare that appeal.
[8] The latter reason offered bears more weight. The applicant has been
suspended from practice for a considerable time, during which he could not
earn an income as attorney. Although it is true that he could have decided to
represent himself, it is usually a salutary rule not to do so. Accordingly , he
required legal representat ion and had to pay to receive it. In this he was
hindered by his finances.
[9] Taken together with the fact that the public -whose interest the respondent
had at heart when approaching this court to have the applicant struck from the
roll -will not be placed at further risk should this application be allowed to
proceed (the applicant has been suspended from all practice for a considerable
ti~~ and will remain so) and the fact that this matter obviously holds great
importance for the applicant, we are persuaded to grant the application for
condo nation.
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Should leave to appeal be granted?
[1 O] We may grant leave to appeal, as determined by section 17(1) of the Superior
Courts Act 1 O of 2013, only if the appeal for which leave is sought holds
.,. reasonable prospects of success; or if there is some other compelling reason
why leave should be granted.
I,,
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" [11] In his application for leave to appeal, the applicant does not challenge this
court's conclusion that he is indeed guilty of the several counts of misconduct
the respondent raised against him. That, he accepts.
[12] Instead, the application is broadly based on three claims:
12.1 that the respondent acted ultra vires and so unlawfully in approaching
this court directly with an application for striking, without first holding and
concluding its own disciplinary hearing concerning the applicant;
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12.3 that even if the respondent had the authority in law to approach this court
to have the applicant struck, it could only exercise that authority in cases
involving serious misconduct , and none of the misconducts the applicant
committed was serious;
that there were exceptional circumstances warranting this court to order
the applicant's suspension from practice for a further period, instead of
striking him from the roll, to wit, that the applicant showed the potential
to be rehabilitated ; and
12.4 that the impact that this court's striking the applicant from the roll would
have on him in his personal and professional capacities , on its own
warranted grant of leave to appeal.
[13] The. first three of these grounds for leave to appeal concern the prospects of
su9cess of the appeal; the fourth constitutes for the applicant another
compelling reason why leave should be granted. None assist him.
[14] Concerning the first, the applicant could again direct us to no authority in law
for his reading of the power of the respondent to approach this court to have
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him struck, as against the surfeit of authority to the contrary.1 Indeed, this
ground for leave to appeal is so clearly devoid of merit that it should properly
not have been taken.
[15] Likewise the second: the applicant's submission that his practicing without a
fidelity fund certificate and his failure to render his statements of account when
required are not serious misconduct simply ignores the copious authority to the
contrary;2 and he fails at all to address the other seveml instances of
misconduct this court found him guilty of, including his willful disregard of orders
of this court and his lack of integrity.
[16] For the third, it was submitted on behalf of the applicant that he had shown the
potential during his suspension from practice preceding this court's order
striking him from the roll, the potential to be rehabilitated . But this court was
directed to no facts on record to substantiate this claim. The many facts
showing the contrary -that while suspended , the applicant continued to
maintain his innocence , adopted an obstructionist and adversarial attitude,
refu.sing to be open with and cooperate with the respondent ; and contravened
orders of this court -are not accounted for.
[17] Of course, concerning the third ground for leave, as correctly submitted on
behalf of the respondent , the applicant faces a much higher bar than simply
persuading us of their cogency on the law and the facts. Because it challenges
this court's exercise of a so-called strict discretion , the applicant must show that
this court 'failed to bring an unbiased judgment to bear on the issue; did not act
for substantial reasons; exercised its discretion capriciously , or exercised its
discretion upon a wrong principle or as a result of a material misdirection ' -in
short, that it was not exercised judicially.3 This he has not even attempted to
do.
[18] Concerning the fourth, the applicant must also fail. Every erstwhile legal
practitioner struck from the roll by order of this court is affected by that order in
'See paragraphs [13J and [14] of t11Is Courrs Judgment In the striking out appllcatlon.
2 See paragraph [71) of this Courrs judgment in the striking out application.
3 Malan and Another v Law Society, Northern Provinces 2009 (1) SA 216 (SCA) at para [13].
[19) 6
broad terms in the same way as the applicant -they are all pro~g191-6
permanently barred from the profession through which they earn a living, with
the serious consequences economically and otherwise that inevitably flow from
that. The applicant shows no circumstance outside of the norm -compelling ,
that is -that would warrant grant of leave absent reasonable prospects of
success.
According ly, the applicant shows no prospects for success on appeal; and
raises no other compelling reason why leave to appeal should be granted, and
we order as follows:
1. The late filing of the application for leave to appeal is condoned .
2. The application for leave to appeal is dismissed, with costs.
JFD Brand
Acting Judge of the High Court
Gauteng Division, Pretoria
d~
Judge of the High Court
Gauteng Division , Pretoria
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0001-7APPEARANCES
Counsel for the applicant:
Instructed by:
Counsel for the respondents :
Instructed by:
Date of the Hearing:
Date of Judgment:
. ' 7
Adv M Makoko
Mr R Stocker
Rooth & Wessels Inc.
3 March 2025
4 March 2025