THE REPUBLIC OF SOUTH AFRICA
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
[WESTERN CAPE DIVISION, CAPE TOWN]
CASE NO : 5029/2024
Before ALLIE, J et FORTUIN, J
Hearing: 17 March 2025
Judgment Delivered: 2 May 2025
In the m atter between:
NONOZA POTELWA Applicant
and
SOUTH AFRICAN LEGAL PRACTICE COUNCIL 1st Respondent
WESTERN CAPE PROVINCIAL COUNCIL 2nd Respondent
TIMOTHY COLIN GEOFFREYS 3rd Respondent
MARISKA SHRIVES 4th Respondent
CHA RLENE LEE -ANN SNELL 5th Respondent
___________________________________________________________________
JUDGMENT ELECTRONICALLY DELIVERED ON 2 MAY 2025
___________________________________________________________________
ALLIE, J:
1. This is an applic ation to review and set aside the decision of the Disciplinary
Committee [ “ the DC”] of the South African Legal Practice Council, Western
Cape Provincial Council [ the “ LPC”] made at an inquiry held on 1 December
2023.
2. A counter application was brought b y the LPC to have the name of the
applicant struck from the roll of legal practitioners, but that counter application
has been withdrawn. The issue of the cos ts of that counter application is what
this court has to determine.
3. There is also an application brought by the LPC for leave to file a further
affidavit relating to the main application.
4. The LPC initially filed a note to abide by the decision in respect of Part A where
the following relief was sought:
“1. Condoning the applicant’s non -compliance wit h the Uniform
Rules of Court and the Practice Directions of this Honourable
Court pertaining to time periods and service of documents and
that the relief soug ht in Part A of this notice of motion be dealt
with as an urgent application.
2. Suspending the i mplementation of the decision taken by the
Disciplinary Committee comprising of: Mr Timonthy Colin
Geoffreys, Mrs. Mariska Shrives, and Ms. Charlene Lee -Ann
Snell (“Disciplinary Committee”) on 13 December 2023,
under the auspices of the Western Cape Prov incial Council
(“Provincial Council”) and published by the South African
Legal Practice Council (“LPC”) on its Website, in terms of
section 38(3)(d)(i) of t he Legal Practice Act, 28 of 2014
(“LPA”), on an unknown date to the applicant, until such time a s
the relief sought under Part B of this notice of motion is
finalized.
3. Interdicting the LPC and the Provincial Council from
implementing and/or putting in operation the decision of the
Disciplinary Committee, dated 13 December 2023, until such
time as the relief sought under Part B of this notice of motion is
finalized.
4. Directing the LPC to remove the published decision of the
Disciplinary Committee aga inst the applicant from its website,
within two (2) days of the granting of this Order, and up unt il
such time as the relief sought under Part B of this notice of
motion is finalised.
5. Directing the LPC and the Provincial Council and such other
respondent(s) who may oppose this application to pay the
applicant’s costs of suit, jointly and severally, th e one paying the
other(s) to be absolved.”
5. On 14 March 2024, at the hearing of Part A, by agreement between applicant
and the respondents, an order was made before Adams, AJ, incorporating the
following terms:
5.1. The decision of the DC taken on 13 December 2023 and published on
the LPC website is suspended pending the final determination of Part
B.
5.2. The LPC and its Western Cape Provincial Council are interdicted from
implementing and/or putting into operation the decision of the DC dated
13 December 2023 until the relief sought in Part B is finally determined.
5.3. The LPC shall remove from its website the decision of the DC within 2
days of the order.
5.4. No ord er as to costs.
6. The LPC was not prevented from challenging the above order. They did not
bind its elf nor did the court bind it, to not challenge the relief sought in Part B.
Therefore , the basis of applicant’s suggestion that the counter application is
contempt uous is not explained
7. This Court accepts that the LPC’s role vis a vis the Court pronouncin g upon the
regularity of its decisions, is a statutory one and that it is duty bound to present
information in clarification and support of its decision. In t he circumstances, the
further affidavit sought to be delivered by the LPC is meant to clarify the
position of the chairperson of the DC and was delivered when it could provide
the applicant with sufficient time to consider it, therefore its filing and delivery is
condoned.
8. The reason that the LPC provides for bringing the counter application, is that it
was meant to be a response to the main application.
9. As Applicant’s counsel points out, the resolution relied on by the LPC for the
authority to bring the counter - application predates the launch of this
application. The resolution was passed on 9 March 2024 even though it was
signed on 10 July 2024 whereas this application was launched on 12 March
2024 and set down for the hearing of Part A, namely the interdictory relief, on
14 March 2024.
10. No acceptable reasons were offered for bringing the counter -application on
22 July 2024 . The applicant responde d by serving and filing a Notice in terms of
Rule 30(2) (b) on 29 July 2024, requesting that respondent remov e the cause
of complaint in that its counter application is an irregular step as contemplated
by R ule 30 and also constitutes contempt of court in that the order taken by
agreement on 14 March 2024 in this matter provides that the DC’s decision of
13 December 2023 is suspended pending the finalization of Part B, namely, this
review application. Accordi ngly, the decision to bring a counter application to
strike the applicant’s name from roll of legal practitioners it was submitted,
amounts to ignoring the su spension of the DC decision.
11. After some debate with counsel for the applicant, i t was accepted th at the
counter -application amounts to a step taken prematurely but since no Rule 30
application was brought by the applicant, this court is not seized with
determining whether it is an irregular step. In light of the withdrawal of the
counter -application, any premature or contemptuous step has been purged.
12. Nonetheless, the respondent has caused the applicant to draft, file and deliver
the Rule 30(2) notice and to prepare argument for the dismissal of the counter -
application before the LPC indicated a f ew days before this hearing, that it
would withdraw the counter application. In my view, therefore, the applicant is
entitled to the party and party costs occasioned by the late withdrawal of the
counter -application.
The background facts
13. The complainan t, Babal wa Grace Mbekeni lodged a complaint with the LPC on
17/11/2020 concerning the applicant allegedly having caused her to sign a
document on 8 October 20 20 relating to a claim that was lodge d on behalf of
her minor child with the Road Accident Fund [“ the RA F”].
14. She alleged that she contacted the RAF who informed her that an amount of
R1834003.00 had been paid out on 26 July 2019 in respect of that claim . She
alleged that the applicant bought her a Wendy -house, a plate stove and fridge
before lockdown in 2020 and applicant allegedly told her that she has to wait 1
year and 9 months for payment of any money.
15. The LPC sent the applicant a copy of the complain t on 22 December 2020 and
requested a response and when no response was received, the LPC on
25 February 2021 , informed the Applicant that, if no response was received by
8 March 2021 the issue will be referred to the investigating committee.
16. The Applicant filed her response on 12 March 2021 . According to Applicant
she and her employee consulted wit h the complainant’s sister in January 2016
regarding a claim against the RAF because t he complainant’s child had been
injured in a motor vehicle accident on 20 March 2013 by an unknown driver .
17. The Applicant initially advised the complainant’s sister that the claim had
prescribed, because the driver was unknown.
18. Applicant however later established that the driver took the injured child to
hospital, and she was able to obtain the driver’s name and address from the
hospital records. Applicant arranged for the driver to report the accident to
SAPS. When the applicant lodged the claim with the RAF, the child had
recovered from h is injuries to such an extent that he reached maximum medical
improvement. The applicant arranged for the child to be assessed by medica l
experts.
19. The mandate was signed by the complainant but the interactions were mostly
between the applicant and the complainant’s sister. The reason for this was
that the complainant’s sister alleged that the complainant abused alcohol and
neglected the c hild therefore applicant suggested that the proceeds of
settlement of the claim be held in her trust account. According to applicant on
26 July 2019 the capit al sum of R1834003.00 was paid. On 25 March 2020
party and party costs of R151132.55 were paid.
20. Due to lockdown, the applicant’s staff was only able to contact and consult with
the complainant’s sister on 26 May 2020. The complainant had no bank
account and no identity document. The complainant requested a house for her
and her children, food , clothes and money. Applicant’s employee bought
groceries to the value of R6638.56 and gave the complainant R2000 in cash.
21. Thereafter the complainant made unreasonab le demands for money according
to the applicant.
22. Applicant refused to give the complainant any fur ther money because the
money was for the benefit of the minor. Applicant appointed a social worker to
investigate the domestic circumstances of the minor because complainant’s
relatives alleged that she squandered money and neglected her children.
Therefor e. Applicant wanted a social worker’s report before transferring money
to the complainant.
23. Applicant alleged that i t was he r intention once she had received the social
worker's report , to bring an application for the appointment of a curator and
would th ereafter deposit the funds into a trust registered on behalf of the minor
or into guardian’s fund. Unfortunately, t he social worker met the complainant
and her children only once but did not meet with c omplainant’s sister and eldest
daughter who are the pe rsons who informed the applicant of the complainant’s
alleged abuse of alcohol and child neglect.
24. The complainant later withdrew the complaint against the ap plicant because
she went to the office of the applicant who agreed to work with her and assist
her in managing the funds.
25. Despite t he LPC decid ing to mero motu investigate the Applicant particularly
because the applicant had not at the earliest opportunity applied to have a
curator appointed for the minor child in circumstances where, clearly, on
Applicant’s version, at inception, she found the minor’s mother intoxicated and
not capable of managing the child’s finances.
26. On 21 June 2021 the LPC requested a copy of the applicant’s statement of
account in the matter and what the status of the applicatio n for the appointment
of a curator was
27. Also, on 22 June 2024, the LPC requested a copy of the bank statement of the
applicant’s t rust account for the period from 1 July 2019 , which the appellant
supplied on 24 June 2021.
28. On 5 July 2021, t he LPC furtherm ore requested a copy of the client’s trust
ledger.
29. On 6 July 2021 Applicant’s employee advised the LPC that applicant was away
in the Eastern Cape and would return later i n July 2021.
30. On 20 July 2021, applicant advised the LPC that in June 2021, the comp lainant
gave a mandate for her to proceed to instruc t counsel to apply for the
appointment of a curator ad litem . She said that she requested the ledger sheet
from her accountant who would only provide it if she settled her outstanding
debt with him. Furth ermore, s he also said that she would prepare the
applicant’s statement of account when she returned to office.
31. On 21 February 2022, the LPC addressed a follo w up letter to the applicant
once again seeking the statement of account, the trust ledger and an update on
the status of the appointment of a curator. The LPC further requested a copy of
the court order for the appointment of a curator and asked when the funds were
paid to the curator and proof thereof . The LPC pointed out that if the funds were
inves ted prior to the curator’s appointment, then proof of the investment is
required. The LP C advised the applicant that a complaint of alleged un -
professional co nduct would be considered by the investigating committee on
15 March 2022 and her response had to be provided by 8 March 2022.
32. On 8 March 2022, applicant replied to the LPC advising that she was a n acting
magistrate and has limited time to access her practice .
33. Applicant alleged further that a cost consultant was working on her bill and she
confirm ed once again that her statement of account would be provided. Her
accountant would only release the trust ledger once she paid him. A curator
was eventually appointed and the court order was annexed. She undertook to
account to the curator once the curato r was appointed by the Master. Applicant
also said that she was waiting on the letters of appointment of the curator
before paying over the funds. Applicant informed the LPC that her magistrate’s
contract would end on 31 March 2022 and asked for an extens ion of time to
provide the outstanding information.
34. On 19 October 2022, the LPC informed applicant that a complaint of
unprofessional conduct was referred t o the investigating committee for its
consideration. The applicant replied and asked for an extens ion until
12 November 2022 to file her response to the LPC queries.
35. The LPC wrote to applicant on 9 June 2023 informing her that the I nvestigating
Committee requested an explanation and the grounds for the continued holding
of the funds and if she no long er held the funds on what grounds, she held the
funds previously . She was asked to respond by 22 June 2023.
36. The LPC informed applicant on 12 September 2023 that the investigating
committee considered the matter on 8 September 2023 and directed that it be
referred to the DC in terms of Rule 40.5.1.
37. In a letter dated 26 September 2023 the Applicant was summonsed t o appear
before a disciplinary committee on 12 October 2023 at 09h30 to answer a
charge of misconduct in terms of clause 21 of the LPC’s Code in t hat she
allegedly breached the following provisions of the Code:
37.1 Provision 3.8 for failing to account faithfully, accurately and timeously
to the complainant ;
37.2 Provision 3.11 for failing to use her best efforts to attend to the RAF
matter in a competent and timely manner in that a curator bonis was
only appointed in November 2021 despite the funds having been paid
to the applicant in 5July 2019 ;
37.3 Provision 3.15 of the code in that she brought the profession into
disrepute by misappropriating funds received from RAF on behalf of the
complainant’s minor child ;
37.4 Provision 6.2 of the code in that she failed to advise/ provide the LPC
with the following information:
(a) Whether the funds received from the RAF were investe d
(b) a copy of the final statement of account from the applicant
(c) a copy of the trust ledger
38. The LPC, in the aforementioned letter, alerted the applicant to the f act that, in
terms of Rule 41, she may be present at the disciplinary hearing and that the
committee may proceed to conduct the hearing in her absence if the y are
satisfied that notice of the hearing had been received by her.
39. However, the hearing was pos tponed because, o n 29 September 2023 the LPC
inform ed her that the disciplinary hearing could not proceed as planned on 12
October 2023 would be heard, instead on 19 October 2023.
40. On 5 October 2023, the LPC sent an email to the applicant and stated that the
LPC still did not received an acknowledgement of receipt to their email dated
29 September 2023 in which the hearing date was changed. In the email of 5
October 2023, the LPC requested an urgent acknowledgement of receipt and
applicant’s staff confirm ed applicant’s receipt but said that applicant was in the
Eastern Cape and would return in that week.
41. On 5 October 2023, Applicant’s office secretary sent the LPC an email stating
that the LPC”s email had been forwarded to applicant’s personal email. The
office secretary stated that applicant had employed a legal team that would
represent her at the disciplinary hearing. That email contains a paragrap h
raising displeasure at the tone and content of a call from the LPC concerning
applicant’s alleged frequen t visits to the Ea stern Cape which was perceived as
disparaging.
42. On 6 October 2023, the LPC clarified in an email that there are not two
proposed dates but just one, namely 19 October 2023.
43. On 13 October 2023, the LPC sent the applicant an email attachin g a bundle of
documents that would be used at the disciplinary hearing on 19 October 2023.
44. On 17 October 2023 Applicant provided a medical certificate from a doctor.
45. On 18 October 2023, the LPC granted a postponement of the disciplinary
committee meeti ng and informed the applicant thereof.
46. On 20 October 2023, the LPC informed the applicant that the disciplinary
hearing was postponed to 9 November 2023. The legal office r of the LPC who
wrote the email stated that she would object to any further postpone ments
because of the seriousness of the charge.
47. The legal representative of the appli cant indicated to the LPC that he is not
available to attend the discip linary committee hearing in 2023 and is available
only on 5 February 2024 but on 20 October 2023 t he LPC informed the legal
representative that the hearing will proceed on 9 November 2023.
48. The legal representative wrote to the LPC on 26 Octob er 2023 stating that he
did not seek a postponement, but he requested that a date be set t hat is
mutually suita ble for him as well , because the date of 9 November 2023 is a
unilaterally set date. The attorney informed the LPC that applicant is ill and will
see her doct or on 9/11/2023.
49. On 8 November 2023, the LPC wrote to the applicant’s legal representative
informing h im that a new date had been set for the hearing, namely
21 November 2023.
50. On 14 November 2023 the applicant wrote a letter to the LPC complaining
about the conduct of the legal officer, Ms Alexander.
51. On 17 November 2023 a senior legal officer at t he LPC one Craig Lucas
informed applicant that he require d a signed letter of complaint from her.
52. On 23 November 2023 the LPC sent an email to the applicant and her attorney
advising that the disciplinary enquiry was to be held on 21 November 2023 and
neither the applicant nor her attorney attended the hearing.
53. The DC postponed the matter to 13 December 2023 and said that all
correspondence must be sent to the applicant and that applicant should attend
the hearing on 13 December 2023 and if her attorney i s not available, she
should obtain a different legal representative. Applicant was also informed that
in the event that applicant persisted with an applicatio n for recusal of the legal
officer Ms Alexander, another legal officer, will be available to atten d the
proceedings.
54. On 12 December 2023, the LPC sent an email to applicant and her attorney to
remind them that the new date of the DC hearing was 13 December 2023.
55. On 1 March 2024, applicant’s attorney wrote to the LPC stating that he was
available to a ttend a hearing in the week of 15 April 2024 .
56. On 4 March 2024 , the applicant’s attorney sent a letter to the LPC national
office in which the following alleg ations are made:
56.1. Applicant is aware that on 13 December 2023 a decision was made by
the LPC (WC) ;
56.2. a suitable date for hearing the DC inquiry was never arranged with the
applicant’s attorney ;
56.3. the ill ness of the applicant was ignored ;
56.4. the hearing proceeded despite applicant lodging a complaint against
Ms Alexander ; and
56.5. the manner of procee dings was alleged to be unfair and therefore a
nullity.
57. On 27 March 2024, the LPC informed the applicant of the decision of the DC
taken on 13 December 2023 and she was advised of her right to appeal the
decision within 30 days from the date of notificati on of that decision. She was
also informed that the council of the LPC had approved the DC’s
recommendation that proceedings be brought for the striking of applicant’s
name from the roll of legal practitioners.
Applicant’s allegations
58. It is common cause t hat this application for an interdict in Part A and review in
Part B was launched on 12 March 2024, that being some 15 days before the
LPC notified the applic ant of its DC decision taken already on 13 December
2023, some 14 weeks before the notification.
59. Applicant alleges, and it can’t be disputed, that she was informed of the DC’s
decision by a colleague who saw it posted on the LPC’s website.
60. Applicant alleges that the late notification impacted adversely on her right to
proceed with an internal appeal because that appeal process was rendered
nugatory by the inordinately late notification, which she received after she had
already launched these proceedings, by which time, it was clearly too late to
bring the internal appeal.
61. The LPC also took a resoluti on on 9 March 2024, to bring striking proceedings
against the applicant, at a time when she had not been notified of the DC’s
decision of 13 December 2024.
62. According to applicant, the procedure followed at the DC hearing on 13
December 2023 is irregular f or the following reasons:
62.1. She was not granted a postponement at the hearing despite her having
sent her sister to ask for one and despite an attorney from her office
accompanying her sister. The DC chair requested a medical certificate
from a Western trai ned medical practitioner and would not have
accepted a certificate from a traditional healer, which certificate was
subsequently made available to the LPC after the hearing;
62.2. The LPC did not afford applicant’s attorney a courtesy of a mutually
agreeable da te for the hearing and unilaterally proceeded to set the
hearing down for the 13 December 2023 despite knowing that her
attorney was not available;
62.3. The Legal Officer, Ms Asia Alexander[ “ Alexander”] ought not to have
formed part of the DC process in her capacity as pro forma prosecutor,
as there was an unresolved objection to her on the basis that she
displayed bias towards the applicant;
62.4. The chairperson of the DC should have recused himself in that he
knows the applicant;
62.5. The notification of the decisio ns taken at the hearing was sent to the
applicant at a time when it was too late, thereby causing her prejudice
with regard to exhausting internal remedies;
62.6. The late notification meant that members of the public and the
profession saw the decision to strik e the applicant on the LPC’s website
before applicant did and it cause d her reputational harm;
62.7. The DC failed to call the complainant to testify at the enquiry when
clearly her testimony was necessary to establish if funds were paid to
her or to the curator ;
62.8. The DC accepted testimony from Alexander in circumstances where
she was biased and where her evidence could not be tested;
62.9. The chairperson of the DC gave th e applicant’s sister the impression
that the DC would consider her application for a postponement and
revert before proceeding but that did not occur. Applicant’s attorney
would have been in a position to send an attorney to the enquiry if he
knew that it would proceed in the absence of the applicant;
62.10. The DC chairperson displayed a disregard for the tr aditional healing
process and mental health illness of the applicant b y stating that the
applicant had applied for postponements on several occasions
previous ly, thereby not accepting that applicant did not willfully absent
herself ;
62.11. The DC enquiry proceede d to consider not only alleged breaches of the
applicable Code , but also sanction at the same hearing despite
applica nt being absent in circumstance where applicant is entitled to
have been informed of the findings of guilt on the breaches of the Code
and to present facts and argument in mitigation, for the purpose of the
sanctions.
The Respondents’ version
63. Respondents make the following submissions concerning the allegations of
irregularity in the proceedings:
63.1. The sister of the applicant did not tell the DC that she had a mandate
from the applicant and the attorney that accompanied her, said
pointedly that she did not hold a mandate but was merely
accompanying applicant’s sister to explain applicant’s absence to the
DC. No request for a postponement was ma de.
63.2. Concerning the fairness in proceeding in the absence of the applicant,
it was alleged that the chair went to great lengths to establish when the
applican t became aware of her illness and for how long she had been ill
because she gave the LPC no prior notification that she would be too ill
to attend the enquiry on 13 December 2023 even though she
successfully applied for and obtained postponements on previous
occasions with the assistance of Western medical c ertificates.
63.3. According to the attorney that a ccompanied Applicant’s sister, she saw
the applicant two weeks prior to the hearing and applicant commuted
between Eastern Cape and her office in Cape Town ov er an extended
period since end June 2023, already. Applicant was alleged to have
represented a cl ient during that period.
63.4. The alleged bias of the pro forma prosecutor is irrelevant because it is
the bias of the administrator, namely the chairperson that is relevant.
From the transcript it is clear that the chairperson did extensive
questioning of appl icant’s sister and the attorney present to establish
for how long applicant had been ill on that occasion, when her illness
was known and why applicant did no t notify the DC or the LPC prior to
the day of the hearing of her illness or that she was ill to such an extent
that she could not be present at the enquiry. Therefore, it was alleged
that the facts speak for itself and it is clear that the chairperson was not
objectively biased.
63.5. No formal application was made for a postponement at the enquiry nor
was a medical certificate of any nature produced.
63.6. The numerous emails sent by the LPC to the applicant requesting her
co-operation in clarifying how the funds wer e used and what funds
were left as well as where the funds were being kept, were reasonable
attemp ts by the LPC to involve the applicant in the process of clarifying
whether trust funds were misappropriated or not. Those attempts to
obtain a response from applicant that would put to rest any concern
that trust funds were in jeopardy spanned the period from 22 December
2020 until 12 December 2023.
63.7. The Legal Practice Act [”LPA”] places a duty on applicant as a legal
practitioner to co -operate with a discipli nary investigation, yet she failed
to do so.
63.8. It is the applicant who should have presented testimo ny at the enquiry
not the complainant because according to the applicant, the
complainant was not capable of managing her child’s funds, a fact
known to applicant at the time when she took on the case.
63.9. The pro forma prosecutor does not testify or give evid ence herself, she
merely sets out the case based on the information that she ha d
gathered, therefore an objection to her testifying, is misplaced.
63.10. The LPC had made it clear to the applicant in its email, that the DC
can’t sit at the pleasure of her attorne y and that if he is not available,
she should obtain a different attorney, therefore the grounds of alleged
irregularity based on no mutually agreeable date having been reached
with her attorney can’t be considered as a valid ground.
63.11. The chairperson of the DC did not state, according to the transcript that
the DC would come back to the applicant’s s ister to inform her if they
would proceed in applicant’s absenc e or grant an postponement and in
any event no application for a postponement was made.
63.12. According to the transcript, there was no emphasis on the lack of a
medical certificate but rather on no prior notification by the applicant
that she would be absent.
63.13. The LPC did not have to refer the issue of the applicant’s alleged
unprofessional conduct to a DC b efore it could decide to bring striking
off proceedings as it could proceed without a formal charge if in its
opinion, nature of the alleged misconduct is so egregious, that it
justifies considering the applicant to be not fit an proper to practice as
an attorney and remain on the roll.1
63.14. The LPC alleged that section 39(6) (a) of the LPA provides that a
person charged may be present at the hearing of disciplinary
proceedings and that means applicant did not have to be present and
the proceedings were still regular although conducted in her absence
after she received notice of the date of the enquiry and brought no
application for a postponement nor did she noti fy the LPC in advance
that she would not be present.
Evaluation
64. The applicant did indeed present some version to the LPC at an early stage in
response to the complainant. However, she did not explain some glaring
contradictions in her reasons for not providing cert ain necessary information
and for being absent on 13 December 2023.
65. It is clear, that o n numerous occasions when the applicant sought a
postponement of the DC enquiry or an extension of time within which to provide
the requisite information, she relied on Western trained doctors’ medical
certificates, yet on the c ritical date of 13 December 2023, aft er she was
informed by the LPC th at the enquiry would proceed with or without her
attorney, she provided no certificate of that nature. In light of those undisputed
facts, the allegation that the DC was prejudiced against traditional healers, is no
more than, a red herring.
66. It was argued on applicant’s behalf that her state of mental health was so
precarious that she could not provide a western medica l certificate nor notify
the LPC in advance of her intended absence. However if that was indeed th e
1 Law Society of the Northern Provinces v Morobadi [2018] ZASCA 185 at [25]; Cape Law Society v
Gihwala [2019] 2 All SA at [110] to [111]; S. A Legal Practice Council v Mokhele [2024] 2 All S A
272(fb) AT [42] TO [46]; SA Legal Practice Council v Nonxuba & Ano [2024] ZAWHC 410 at [78]
case, the glaring inconsistency in applicant’s behavior remains unanswered,
namely, how was she able to represent clients and do court appearances
intermittently, during the period June 2023 until end November 2023 as stated
by the attorney that accomp anied her sister to the enquiry, if she was indeed
too ill to attend the enquir y or to provide prior notice of her intended absence at
the enquiry.
67. If her attorney represented the applicant to the best of his ability, as he is duty
bound to, why did he not send a substitute to represent her on 13 December
2023, when the LPC had already stated that applicant should obtain a new
attorney if her attorney was unavailable and bearing in mind the applicant’s
statutory duty to co -operate with the LPC’s enquiry. There is therefore no facts
from which we can conclude that if the chairperson had informed applicant’s
sister that the enquiry would proceed, that she would ha ve ensured that
applicant’s attorney would send a substitute attorney to be present.
68. An even more self-evident explanation that ought to have been forthcoming
from applicant, at an early stage, is why she did not deem it necessary to apply
for a curator for the minor child shortly after she took ins tructions f rom the
child’s mother an d aunt, especiall y since the applicant alleged that the minor’s
mother was inebriated when she met her. Applicant also failed to explain why
she deemed it correct to keep the funds in her account, knowing full well, that it
is a huge amount of money that ought to attract i nterest for the benefit of the
minor.
69. Instead, applicant chose to shift the blame for not having accounted to the
complainant, onto the complainant herself.
70. Appli cant’s counsel before us, accepted that the LPC has a statutory duty to
protect the interest s of the public, particularly with regard to trust funds held by
legal practitioners who are attorneys.
71. The LPC’s decision to constitute an investigating com mittee and later a
disciplinary committee in response to the applicant’s failure to account to the
LPC and her tardy responses, when they were given, can’t be faulted as
constituting bias.
72. The applicant had a duty to clarify the aforesaid preliminary aspects concerning
how she conducted herself with regard to the interests of the minor claimant
and s he did not require her accountant’s co -operation to do so nor did she
require to have a bill of costs drawn up.
73. It is noteworthy that as soon as the applican t received the payment of the claim
from the R.A.F, she debited the complainant’s trust ledger wit h fees in an
amount of R 458 500,75 on 29 July 2019, some 2 days after the RAF paid the
applicant the sum of R1988 934,21. That transaction raises the question of
where the statement of account to the complainant is, to justify that debit for
fees. It does not assist applicant to thereafter inform the LPC that she
instructed a company to draft a bill of costs when she already took some fees
before doing a state ment or a bill of costs.
74. Therefore, the applicant’s challenge to t he procedure followed by the DC on the
grounds that they did not call for further evidence , rings hollow because
applicant was asked by the LPC to provide the requisite explanations but she
failed to do so and failed to appear before the DC.
75. Turning to the structure of the DC’s process and its failure to notify the applicant
of its decisions soon after it made them, the following provisions are relevant.
76. The LPA does not provide that the D isciplinary proceedings should be
conducted on the basis of a decision of guilt and sanctions at t he same hearing.
If anything, section 40 (1) (a) provides that after the conduct of a disciplinary
hearing, the committee must , within 30 days decide whether or not the legal
practitioner is guilty of misconduct.
77. Clearly, section 40 (1) (a) provides for a hearing followed by a decision on guilt
thereafter. That decision must be made after the hearing. That does not mean
that the DC could not, as they did, in casu, make its decision concerning guilt
immediately after holding its enquiry.
78. Section 40 (1) (b) (i) provides that the DC must inform the legal practitioner and
the council of its finding of guilt after making that finding and it must under
section 40(1) (b) (ii), inform the legal practitioner of h is/her section 41 right of
appeal.
79. The DC should the refore have informed the applicant of her right to appeal in
accordance with section 40(1) (b) (ii), at a stage even before the full council sat
to consider t he DC’s recommended sanction of striking.
80. Section 40(2) (a) and (b) provides that the legal pract itioner found guilty of
misconduct may address the DC in mitigation of sentence and may call
witnesses to give evidence in mitigation on his/her behalf.
81. Section 40(2) grants the affected legal practitioner a choice to lead evidence
and make submissions in mitigation of sanctions.
82. Therefore, when the DC in casu , decided to consider the issue of guilt and
sanction simultaneously at the same hearing , it deprived the applicant of her
right to present factors in mitigation of sanction.
83. In so doing, the DC ac ted irregularly and that irregularity had the effect of
denying the applicant a materia l right afforded her by the LPA and by section 34
of the Constitution.
84. Additionally, the applicant’s right to be notified of an appeal process available to
her prior to the consideration of the sanctions, in terms of section 40 (1) (b) (ii),
was also violated in that at that stage, namely after the decision with regard to
guilt was taken, she could have lodged an appeal which would have made the
finding of guilt not fina l and therefore not capable of having been placed on the
LPC’s website. Applicant has alleged substantial reputational harm that
occurred as a consequence of advertising the DC finding prematurely o n the
LPC website. That is a potential harm and prejudice that could have bee n
mitigated or avoided entirely, if the DC followed the provisions of section 40(2).
85. While the LPC’s counsel argues that the section 39(6) (a) (i) provides that the
legal practitioner may be present, (not must be present), therefore the DC could
proceed in her absence, t hat approach does not take account of the applicant’s
right to be heard in mitigation of sanction.
86. The denial of her right to be heard on sanctions is in effect a denial of her
section 34 Constitutional right of access to a fair public hearing and therefore it
constitute s a gross irregularity in the DC ’s procedure concerning the imposition
of sanctions.
87. While the LPC’s coun sel correctly submitted that it is not mandatory for a legal
practitioner to attend the DC hearing , the failure to grant her an opportunity to
do so after a finding of guilt and before imposing sanctions, effectively took
away the applicant’s right to choose to be present for the sanction part of the
proceedings.
88. The LPC’s rules promulgated for d isciplinary proceedings merely parrot the LPA
and are therefore of no assistance in further elucidating the issues discussed
above.
89. While this Court appreciates th at by the time the LPC notified the applicant in
writing of the DC’s decision, the applicant had a lready launched this Application
without having exhausted internal remedies, there was however, nothing
prohibiting the applicant from deciding to stay Part B of this application, namely
the review, pending her exhaustion of the internal appeal process of the LPC.
90. Applicant therefore proceeded with this review despite knowing at the stage of
this hearing, that internal remedies had not been exhausted, a proces s required
by section 7 (2) (a) of the Promotion of Administrative Justice Act 3 of 2000
[“PAJA”] 2.
91. Applicant also failed to apply for an exemption 3 from having to exhaust internal
remedies as provided f or in section 7 (2) ( c) of PAJA and did so at her own
peril.
92. For th e reasons set out above concerning the denial of the applicant’s right to
choose to be present at the enquiry when sanctions were being considered and
in light of the LPA making express provision of her right to choose to present
mitigati on factors, it was inappropriate for the DC to consider sanctions at the
same hearing without havi ng notified the applicant that it intended to do so.
93. I would therefore hold that the applicant has succeeded in her challenge to the
review of the DC procedure followed at the enquiry held on 13 December 2023,
only insofar as it determined sanctions at tha t hearing, prematurely.
94. The lack of procedural fai rness concerning sanctions , is precisely the type of
situation that PAJA seeks to address. Section 3(1) of PAJA, provides as follows:
“Administrative action which materially and adversely affects the rig hts or
legitimate expectations of any person must be procedurally fair.”
95. Until the LPC has purged its irregularity in the proceedings, an irregularity that
offends the audi alteram partem rule of natural justice, this Court is not at large
to entertain t he striking application mero motu as suggested by Respondent’s
counsel.
96. I am inclined to set aside the sanctions imposed by the DC on 13 December
2023 and re fer that aspect of the DC enquiry back to the LPC who must
constitute a new DC with new members to decide the issue of sanctions afresh
after having notified the applicant timeously and in writing of their intention to
2 Koyabe & others v Minister of Home Affairs & Others 2010 (4) SA 327 (CC) at [34]
3 Nichol & Another v Registrar of Pensions Fund & Others 2008 (1) SA 383(SCA) at [15] to [16]
constitute a DC fo r that purposes and after informing her of her right to present
evidence and argument in mitigation of sanctions.
97. The applicant had restricted this application to a challenge on procedural
irregularity and elected not to address the merits of the charges against her.
Howeve r, as outlined earlier herein, we can find no bases for concluding that
the finding of the DC on t he merits, namely the guilty finding ought to be
disturbed.
98. The narrow point on which applicant is partially successful, is the failure of the
LPC and its DC, to notify applicant in writing of its intention to make a finding on
the merits and the sanction s at the same hearing and its failure to inform
applicant that she had the right to present evidence and argument on
sanctions, prior to it being imposed.
99. To the extent that the applicant has been successful in this review and given
the limited complexity in this matter, I would aw ard applicant the costs on a
60% basis including the costs of counsel on Scale B .
IT IS ORDERED THAT:
1. The sanctions and recommendation made by the Disciplinary
Committee on 13 December 2023, in respect of the Applicant is set
aside;
2. The decision on an appropriate set of sanctions and recommendations
to be imposed on applicant is referred back to the Legal Pra ctice
Council, for it to b e determined anew before a differently constituted
Disciplinary Committee made up of different mem bers;
3. The Legal Pra ctice Council, is directed to provide the applicant with due
notice of the reconstituted enquiry pertaining to sanctions and to inform
her of her right to elect to present evidence and argument in mitigation
of sanctions;
4. Applicant’s rev iew concerning the remaining ground of alleged
irregularity is dismissed;
5. Respondents shall jointly and severally, the one paying, the other to be
absolved, b ear 60% of applicant’s costs in Part B, namely the review
application, including the costs of coun sel on scale B;
6. Respondents shall bear the costs occasioned by the launching of the
counter application and the withdrawal thereof;
7. Respondents shall bear the costs , if any, occasioned by their
condonation application for leave to deliver a further affida vit
_________________
JUDGE R. ALLIE
FORTUIN, J:
I agree.
__________________
JUDGE CM FORTUIN
For the Applicant: Adv L Dzai
Instruc ted by WT Mn qandi & Associates
Ref: T Mnqandi
For 1st – 5th Respondents: Adv T Sarkas
Instructed by Fairbridges Wertheim Becker
Ref: S Datay
Republic of South Africa
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO : 5029/2024
In the matter between:
NONOZA POTELWA Applica nt
And
SOUTH AFRICAN LEGAL PRACTICE COUNCIL 1st Respondent
WESTERN CAPE PROVINCIAL COUNCIL 2nd Respondent
TIMOTH COLIN GEOGGREYS 3rd Respondent
MARISKA SHRIVES 4th Respondent
CHARLENE LEE -ANN SNELL 5th Respondent
_________________________________________________ _________________
Coram : ALLIE, J et FORTUIN, J
Judgment by : ALLIE, J
For the Applicant: : Adv L Dzai
Instructed by : WT Mnqandi & Associates (Ref: T Mnqandi )
For 1st – 5th Resp : Adv T Sarkas
Instructed by : Fairbridges Wertheim Becker (Ref: S Datay )
Date of Hearing : 17 March 2025
Judgment delivered on : 2 May 2025