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JUDGMENT
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ORDER
1. The application for leave to appeal is dismissed with costs.
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CORAM: Bam J (Mabesele J concurring)
Introduction
1. This is an application for leave to appeal the judgment and order of this court
of 5 November 2024. That order , inter alia, authorized that the respondent’s
name be struck from the roll of legal practitioners . The respondent wishes to
appeal the order . His grounds of appeal are set out in his Notice of Application
for Leave to Appeal (Notice ). The applicat ion is opposed by the South African
Legal Practice Council, LPC. It contends that the respondent’s grounds lack
merit, and his appeal has no prospect of success. The LPC asks that the
application for leave be dismissed. The LPC further filed papers in which it
sought as its main relief, a declarator that the order of suspension , delivered
in May 2023 , remains extan t. In the alternative, it sought leave in terms of
Section 18(3) of the Superior Courts Act1 (the Act), to execute the judgment ,
notwithstanding the respondent’s application for leave to appeal and any
further applications for leave .
1 10 of 2013
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2. Through a directive issued by this court, the parties were made aware that
the proceedings for leave to appeal will deal only with the question whether
leave should be granted. The result was that the declarator and the issue
pertaining to execution while the application for leave to appeal is pending
were not entertained .
3. I refer to the parties as they were in the original proceedings. In this regard,
the applicant refers to the LPC and the respondent, to Mr Koma.
Applicable legal principles
4. Applications for leave to appeal are governed by Section 17 (1) (a) (i) and (ii).
The subsections state that leave to appeal may only be granted where the
judge or judges are of the view that the appeal would have prospects of
success or where there are some other compelling reason s as to why the
appeal should be heard . An applicant for leave to appeal therefore, as our
senior courts have emphasized, must ‘satisfy the court that the appeal would
have a reasonable prospect of success or that there is some other compelling
reason why the appeal should be heard. If the court is unpersuaded of the
prospects of success, it must still enquire into whether there is a compelling
reason to entertain the appeal. A compelling reason includes an important
question of law or a discreet issue of public importance that will have an effect
on future disputes .’ 2 ‘A mere possibility of success, an arguable case or one
2 Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd (982/18) [2020] ZASCA 17; 2020 (5) SA 35 (SCA) (25
March 2020) .
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that is not hopeless, is not enough. There must be a sound, rational basis to
conclude that there is a reasonable prospect of success on appeal .’ 3
Merits
5. With these principles in mind, I now consider the applicant’s grounds. The
grounds are not numbered and contain no headings. I have , however,
identified two theme s. They are: (i) the applicant failed to conduct its own
investigation and hold a hearing where the respondent is invited to defend
himself and be able to cross examine witnesses , prior to launching the initial
proceedings. In this way, and this leads to the second theme , the applicant
would have realized that many of the complaints had either been withdrawn
or no longer existed .
6. In support of the submission that the LPC had to institute an enquiry prior to
launching proceedings, the respondent referred this court to the matter of
South African Legal Practice Council v Louw4 suggesting that this court should
have follow ed Louw and dismissed the applicant’s application . In Louw , the
court found that the LPC had to first hold an enquiry and investigate the issues
involved prior to instituting legal proceedings.
Analysis
7. These grounds are not new. They were raised as defences during the striking
off proceedings and are addressed in full in the judgment. There is no need
3 MEC for Health, Eastern Cape v Mkhitha and Another (1221/2015) [2016] ZASCA 176 (25 November 2016) .
4 (2023/068293) [2024] ZAGPJHC 1114; [2025] 1 All SA 744 (GJ) (1 November 2024) .
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to repeat the judgment. As for the reference to Louw and the claim that the
applicant had some duty to hold an inquiry prior to launching legal
proceedings , this does not avail the respondent. Louw dealt with a complex
web of allegations of failure to keep proper records, tax evasion , and bribing
estate agents, to mention a few of the charges , in which four directors and
employees were said to be implicated . The court dismissed the application
because not only were the allegations denied by the respondents, but it was
also of the view that it had insufficient information to conduct the three staged
enquiry and it could not make full and fair conclusions.
8. The court made the point that the LPC ought to have first identified the role
and the extent , if any, to which each of the respondents were involved in the
offences mentioned , which the LPC had not done. The present case cannot
be compared to the complexities involved in Louw . Here the respondent
practiced as a referral advocate . The complaints filed by his clients had to do
with his conduct. Their complaints were backed by proof of payment directly
into the respondent’s account , in circumstances where he was not authorized
to take instructions directly from clients much less call for and accept monies
into his personal bank account . The charges occasioned by the complaints
remain unanswered to this day. And, the judgment makes plain that the
respondent eschewed all the invitations to respond to the applicant.
9. I conclude that nothing in the respondent’s grounds disturbs the findings in
the judgment. The appeal in that case has no prospect s of success . On the
question whether there are any compelling reasons why the appeal must be
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heard, the applicant has not identified any. He merely makes a bald statement
that there are compelling reasons without substantiati on. We have found that
there are no compelling reasons in this case. In the event the respondent
referred to Louw to demonstrate some sort of conflict between the two
decisions, we state categorically that there is simply no conflict as already
stated in this judgment. In the event, leave to appeal must be refused .
Closing remarks
10. Having reached the conclusion that leave is to be refused , it is now
appropriate to refer to a matter brought to the attention of this court by the
applican t. It is to the effect that during his suspens ion, the respondent saw it
fit to accept instructions to represent client s in court proceedings . It is unclear
whether the instruction came via an instructing attorney or directly from client .
Nonetheless, a magistrate in Nebo Magistrates Court, District of
Makhuduthamaga, Limpopo , before whom the respondent had appeared,
purporting to represent a client , had reason to believe that something was
amiss during the proceedings. On further enquiry with the LPC, it was
confirmed that the respondent had been disqualified from practice since May
2023 .
11. Upon this discovery, the magistrate had little choice but to apply for review of
the proceedings to the Limpopo High Court , on the basis of the irregularity
occasioned by the respondent’s appearance before court , while the
suspension was in force . The judgment declaring the proceedings a nullity,
based on the respondent’s disqualification, bears case number 122/2023,
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REV 178/2024 , Limpopo High Court , (unreported) and was delivered on 31
January 2025. To protect members of the public, the Court order ed the
registrar to serve a copy of the judgment to the South African Police Service
for further investigation and the LPC. Save to record that this conduct, as
illustrated in the judgment, makes plain that the respondent appears to have
little or no regard for the law, nothing further need be said.
Order
1. The application for leave to appeal is dismissed with costs.
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N.N BAM J
JUDGE OF THE HIGH COURT
OF SOUTH AFRICA, GAUTENG
DIVISION , PRETORIA
Date of Hearing: 28 March 2025
Date of Judgment: 02 May 2025
Appearances :
Counsel for the Applicant: Ms Nereeze Collet (Attorney with
right of appearance)
Instructed by: Rooth and Wessels
Groenkloof, Pretoria
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Counsel for the respondent : -
In person