IN THE HIGH COURT OF SOUTH AFRICA
[EASTERN CAPE DIVISION – MAKHANDA]
REPORTABLE
CASE NO.: CA&R54/2025
DATE DELIVERED: 15 APRIL 2025
In the matter between:
THE STATE
and
LEON KING
REVIEW JUDGMENT
ROBERSON J:
[1] This matter was sent on special review by the Magistrate, East London, with a
request that the uncompleted proceedings be set aside as a nullity.
[2] The accused was charged with assault with intent to do grievous bodily harm
and at his trial was represented by Mr A K No ngendzi, an admitted advocate of the
High Court. Prior to the trial proceeding , when asked by the presiding magistrate in
the reception court if he had been briefed, Mr Nongendzi said that he was acting pro
bono for the accused.
[3] The trial proceeded a s far as the defence case, at which stage the presiding
magistrate, following a query to the Legal Practice Council (the LPC), was informed
by the LPC that Mr Nongendzi was “not registered on the records of the Legal
Practice Council”. According to the pr esiding magistrate when Nr Nongendzi was
informed of this response from the LPC he promised “to fix the problem”. He never
returned to court to continue with the trial.
[4] According to a letter from the magistrate , Mr Nongendzi was admitted as an
advo cate on 28 March 2017, when he was a state prosecutor. A copy of the court
order admitting him was provided. During 2017 he was prosecuted for driving under
the influence of alcohol and was convicted. He only returned for sentencing two
years later, by which time he had absconded from his post as a prosecutor.
Thereafter he appeared as an advocate for accused persons.
[5] When the matter came before me, I requested opinions from the Eastern
Cape Society of Advocates and the Office of the Director of Publ ic Prosecutions ,
Makhanda . The question I posed was whether or not Mr Nongendzi had a right of
appearance in view of the fact that it appeared that he had not applied for enrolment
in terms of s 30 (1) (a) of the Legal Practice Act 28 of 2 014 (the LPA) , which
provides:
“30. Enrolment with Council. — (1) (a) A person duly admitted by the High
Court and authorised to be enrolled to practise as a legal practitioner must
apply to the Council in the manner determined in the rules, for the enr olment
of his o r her name on the Roll. ”
[6] I also raised s 34 (2) of the LP A, which provides for the circumstances in
which an advocate may render services for a fee , and its application if Mr N ongendzi
was acting pro bono .
[7] I received very helpful and comprehensiv e opinions from Mr Beyleveld SC,
the Chairman of the Eastern Cape Society of Advocates, and Mrs Turner, Deputy
Director of Public Prosecutions, Makhanda . I am very grateful to them for the time
and effort they expen ded in order to assist in the matter .
[8] Mrs Turner consulted the LPC with regard to Mr Nongendzi’s status. Its Legal
Officer: Professional Affairs advised that Mr Nongendzi’s name does not appear on
the roll of legal practitioners, that he is not a legal practitioner and that he does not
have a right of appearance in court.
[9] Mr Nongendzi was admitted as an advocate prior to the coming into operation
of the relevant sections of the LPA on 1 November 201 8. Section 114 (1) of the
provides:
“114. Existing advocates, attorneys, conveyance rs and notaries. —
(1) Any person who has been admitted by the High Court and authorised to
be enrolled as an advocate, attorney, conveyancer or notary in terms of any
Act in the former Republic of South Africa and former homelands which is still
applicable before the date referred to in section 120 (4), must be regarded as
having been admitted to practice and, where applicable, subject to any
condition imposed by the High C ourt, must be enrolled as a legal practitioner,
conveyancer or notary in terms of thi s Act, subject to the terms of any order of
court whereby any such person has been suspended from practice as an
advocate, attorney, conveyancer or notary. ”
[10] As Mr B eyleveld stated, the crisp issue is whether or not Mr Nongendzi is
entitled to practi se without an application to the LPC for the enrolment of his name
on the roll of legal practitioners. I respectfully agree with his opinion that a purposive
interpretati on of s 114 (1) of the LPA means that Mr Nongendzi, although admitted as
an advocate, must still be enrolled in order to be entitled to practise.
[11] Mr Beyleveld pointed out that s 30 of the LPA is peremptory and highlighted
certain provisions in s 30. Section 30 (4) provides that the LPC must keep a roll of
legal practitioners; s 30 (4) (a) provides that a document issued by the LPC certifying
that a person has been admitted and enrolled to practise as a legal practitioner is
prima facie proof of the facts stated in the document; and s 30 (5) provides that the
Registrar of the High Co urt which orders the admission and authorisation of a person
to practise and be enrolled as a practitioner must forward a certified copy of the
order to the LPC.
[12] Mrs Turner also referred to Mr Nongendzi’s obligation to follow the prescribed
procedure for enrolment. She stressed the importance of enrolment in enabling the
LPC to carry out its legislated functions, such as the regulation of the affairs of legal
practitioners and the regulation of the conduct of legal practitioners so as to ensure
accou ntability.
[13] Section 24 (1) and s 25 (1) of the LPA are instructive and were referred to by
Mr Beyleveld in support of his opinion that the LPA envisages two require ments to
practise : admission and enrolment . Section 24 (1) provides:
“A person may o nly practise as a legal practitioner if he or she is admitted and
enrolled to practise as such in terms of this Act.”
“Legal Practitioner” as defined in s 1 of the LPA me ans “an advocate or
attorney admitted and enrolled as such in terms of sections 24 and 30,
respectively”.
[14] Even if it is accepted that Mr Nongendzi was acting pro bono , he was still
purporting to act as a legal practitioner when he represented the acc used.
Section 25 (1) of the LPA provides:
“Right of appearance of legal practitioners and candidate legal
practitioners. —(1) Any person who has been admitted and enrolled to
practise as a legal practitioner in terms of this Act, is entitled to practise
throughout the Republic, unless his or her name has been ordered to be
struck off the R oll or he or she is subject to an order suspending him or her
from practising. ”
[15] In my view s 24 (1) and s 25 (1) of the LPA leave no doubt that in order t o
practise and appear in court, a practitioner must be enrolled in terms of s 30 of the
LPA.
[16] It follows that, not having been enrolled as a legal practitioner, Mr Nongendzi
did not meet the definition of a legal practitioner , was not entitled to prac tise and had
no right of appearance when he represented the accused in the matter under review.
[17] It bears mentioning, as Mrs Turner pointed out , that Mr Nongendzi’s conduct
in holding himself out as a legal practitioner is prohibited by s 33 (2) of th e LPA. In
terms of s 93 (2) of the LPA a person who contravenes the provisions of s 33
commits an offence for which a penalty is prescribed.
[18] Mr Nongendzi’s representation of the accused was a fundamental irregularity
rendering the proceedings a null ity. (See S v Mkhise; S v Mosia; S v Jones; S v Le
Roux 1988 (2) SA 868 (AD) at 875G.)
[19] The following order will issue:
19.1 The proceedings against the accused in the Magistrate’s Court, East
London, under case number A1140/2023 , are reviewed and set aside.
19.2 Should the prosecution of the accused commence de novo, the trial
must be held before a different magistrate.
_________________________
J M ROBERSON
JUDGE OF THE HIGH COURT
I agree
_________________________
N MOLONY
ACTING JUDGE OF THE HIGH COURT