THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 795/2023
In the matter between:
SOUTH AFRICAN LEGAL PRACTICE COUNCIL APPELLANT
and
KGETSEPE REVENGE KGAPHOLA FIRST RESPONDENT
KGAPHOLA INCORPORATED
ATTORNEYS SECOND RESPONDENT
Neutral citation: South African Legal Practice Council v Kgaphola and
Another (795/2023) [2025] ZASCA 66 (23 May 2025).
Coram: MAKGOKA, MOTHLE and MABINDLA -BOQWANA JJA and
HENDRICKS and BAARTMAN AJJA
Heard : 12 September 2024
Delivered : 23 May 2025
Summary: Legal Practice – Legal Practice Act 28 of 2014 – whether high court
exercised its discretion judicially – Professional misconduct – non-compliance
with the rules.
Professional misconduct – Unjustifiably i mpugning the integrity of a regulatory
legal body without basis – in itsel f a professional misconduct.
Procedure – application for postponement – whether satisfactory explanation
furnished for postponement.

2

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from: Gauteng Division of the High Court, Pretoria (Mngqibisa -
Thusi J and Nqumse AJ, sitting as court of first instance):
1 The applicat ion for postponement is refused with costs , to be paid by the first
respondent on an attorney and client scale.
2 The appeal is upheld with costs on attorney and client scale.
3 The order of the Gauteng Division of the H igh Court, Pretoria is set aside and
replaced with the following:
‘1 The first respondent, Mr Kgetsepe Revenge Kgaphola, is suspended from
practic e as a legal practitioner for 12 months;
2 The period of suspension referred to above is wholly suspended on
condition that the first respondent:
2.1 complies with rule 54.34 and rule 54.16 of the L egal Practice Council
within 30 days of this order;
2.2 does not contravene section 84(1) of the Legal Practice Act 28 of 2014
during the period of suspension;
2.3 is not found guilty of a contravention of rule 3.1 of the Legal Practice
Council’s Code of Conduct during the period of suspension;
3 The first respondent is ordered to pay the costs of this application on an
attorney and client scale.’



3

___________________________________________________________________

JUDGMENT
___________________________________________________________________

Makgoka JA ( Mothle and Mabindla -Boqwana JJA and Hendricks and
Baartman AJJA concurring):
[1] The appellant, t he South African Legal Practice Council (the LPC) , is a
national statutory body , established in terms of s 4 of the Legal Practice Act
(the LPA) ,1 which, among other things, regulates the conduct of all legal
practitioners and candidate legal practitioners in South Africa. It appeals against
an order of the Gauteng Division of the High Court, Pretoria (the high court) .

[2] The high court dismissed the LPC’s application to remove the first
respondent, Mr Kgetsepe Revenge Kgaphola, from the roll of attorneys,
alternatively to suspend him from practice. The high court ordered each party to
pay their own costs. It subsequently granted the LPC leave to appeal to this Court.
Mr Kgaphola conducts practice under the name Kgaphola Incorporated
Attorneys, the second respondent (the firm). For convenience, I refer to Mr
Kgaphola as ‘the respondent’.

Application for postponement
[3] At the hearing of the appeal, the respondent sought the postponement of
the appeal, which t he LPC opposed . We dismissed that application with costs on
an attorney and client scale and undertook to furnish the reasons for that order in
this judgment. Below are the reasons.

[4] The respondent failed to file his heads of argument in this Court. At the
hearing of the matter, counsel appea red on behalf of the respondent and applied

1 Legal Practice Act 28 of 2014 (the LPA).
4

for a postponement. The application for postponement was made orally from the
bar without a substantive application. The basis for the application was that the
respondent wished to obtain the transcribed record of oral submissions in the high
court.

[5] Ordinarily, t he transcript of motion proceedings in the high court does not
form part of the record submitted to this Court. This is stated in rule 8(6) (j)(i) of
the Rules of this Court , which provides that unless it is essential for the
determination of the appeal, and the parties agree thereto in writing, the record
shall not contain argument and opening address. Counsel submitted that it would
be apparent from the transcript that the LPC had conceded that when the
application was launched, the respondent had complied with the relevant LPC
rules he is accu sed of breaching.

[6] It is necessary for an applicant for a postponement to give a full and
satisfactory explanation of the circumstances that necessitate a postponement.2
An application for postponement should be sought as soon as a litigant realises
the need for it. It is self -explanatory that the closer to the hearing the application
for postponement is made, the greater the risk of prejudice to the other litigants
involved in the matter and inconvenience to the court.

[7] As this Court emphasised in McCarthy Retail Ltd v Shortdistance Carriers
CC:3

2 Imperial Logistics Advance (Pty) Ltd v Remnant Wealth Holdings (Pty) Ltd [2022] ZASCA 143; 2022 JDR 3071
(SCA) para 6 , with reference to Myburgh Transport v Botha t/a S A Truck Bodies [1991] 4 All SA 574 (NmS);
1991 (3) SA 310 (NmS) at 576 -578.
3 McCarthy Retail Ltd v Shortdistance Carriers CC [2001] ZASCA 14; [2001] 3 All SA 236 (A) ; 2001 (3) SA
482 (SCA) .
5

‘[A] party opposing an application to postpone an appeal has a procedural right that the appeal
should proceed on the appointed day. . . Accordingly . . . an applicant for a postponement . . .
must show a ‘‘good and strong reason ’’ for the grant of such relief’ .4
In Lekolwane and Another v Minister of Justice ,5 the Constitutional Court
explained:
‘The postponement of a matter set down for hearing on a particular date cannot be claimed as
a right. An applicant for a postponement seeks an indulgence from the court. A postponement
will not be granted, unless this Court is satisfied that it is in the interests of justice to do so. In
this respect the applicant must ordinarily show that there is good cause for the postponement
. . .’6

[8] In the present case, there is no explanation why the respondent did not: (a)
avail himself of the provisions of rule 8(6) (j)(i) by engaging with the LPC to
obtain agreement in respect of the extent of the record to be filed; (b) take steps
to obtain the transcript. The LPC filed the appeal record on 25 October 2023 and
its heads of argument on 23 November 2023 , with no objection from the
respondent. As mentioned , the respondent did not file heads of argument.

[9] Even after all these events, there is no explanation why the respondent took
no steps to obtain the transcribed record between December 2023 and when this
appeal was heard in September 2024. Apart from the fact that the application for
postponeme nt lacked merit, the respondent also showed flagrant disregard for the
rules of this Court , as explained above. For these reasons, we marked our
displeasure by dismissing the application with a punitive costs order on an
attorney and client scale. As counsel for the respondent had no mandate to argue
the merit s of the appeal, he was excused and the appeal proceeded unopposed .

4 Ibid para 28.
5 Lekolwane and Another v Minister of Justice [2006] ZACC 19; 2007 (3) BCLR 280 (CC).
6 Ibid para 17. See also National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs
and Others 1999 (3) SA 173 (C) at 181D; 1999 (3) BCLR 280 (C) at 287E; The National Police Service Union
and Others v The Minister of Safety and Security and Others [2000] ZACC 15; 2000 (4) SA 1110 (CC); 2001 (8)
BCLR 775 (CC) paras 4 -5.
6

The merits of the appeal
Factual background
[10] The respondent was admitted as an attorney on 28 August 2020. In October
2020 , he opened a legal practice for his own account under the firm’s name and
informed the LPC accordingly . On 8 October 2020, the LPC confirmed the
registration of the firm. It also requested the respondent to pay his membership
fees; and furnish it with certain information relating to the firm, including the
firm’s trust banking details. The LPC informed the respondent that a fidelity fund
certificate would only be issued upon receipt of the requested information.7 The
respondent neither responded to the LPC’s letter, nor furnished the LPC with the
requested information. As a result, no fidelity fund certificate was issued to him.

The application in the high court
[11] On 10 March 2021, the LPC launched an appli cation in the high court for
removal of the respondent ’s name from the roll of attorneys, alternatively, for his
suspension. On 16 March 2021 , the respondent applied for, and was issued, a
fidelity fund certificate. However, this certificate was withdrawn by the LPC on
30 April 2021, as a result of the respondent ’s failure to submit the firm’s opening
auditor’s report to the LPC before 30 April 2021, as required by the rules of the
LPC. Despite this, the respondent continued practising as an attorney .

[12] In its application, the LPC raised seven complaints against the respondent .
First, that he had practised as an attorney for the periods 9 October 2020 to
31 December 2020 and 1 January 2021 to 15 March 2021, without being in
possession of a fidelity fund certificate. Second, that he failed to notify the LPC
of the firm’s trust banking details. Third, that in contravention of rule 54.34, the
respondent had opened the firm’s trust bank account in a province where his main

7 In terms of s 84(1) of the LPA, a ll legal practitioners must at all times be in possession of a valid fidelity fund
certificate, which certificate is valid until 31 December of the year in which it has been issued.
7

office is not based .8 Fourth , that he had failed to pay his annual membership fees
for the 2020 financial year , due on 31 October 2020.

[13] Fifth , that he had failed to register the firm with the Financial Intelligence
Centre, as required by s 43B of the Financial Intelligence Centre Act (FICA).9
Sixth , that he had failed to reply to correspondence. Seventh, that he failed to
register for a legal practice management course approved by the LPC’s council
within the prescribed period.10 The completion of the course is a prerequisite for
the issuing of a fidelity fund certificate.11 The last complaint was not persisted
with in this Court and will therefore not be considered.

[14] In response, the respondent denied that he had practised without a fidelity
fund certificate. Instead, he averred that the application had been served on him
while he was attending to the requirements necessary for him to be issued with a
fidelity fund certificate. As regards the co mplaint that he had failed to furnish the
LPC with his trust banking details, the respondent denied the allegations and
stated that ‘[the LPC] was furnished with all the required documents ’.

[15] Regarding the alleged non -compliance with rule 53.54 in respect of the
firm’s banking account, he contended that the LPC had ‘never queried or noted
that I did not open my Business and my Trust accounts within the jurisdiction of
my main office’. The respondent admitted that he had not paid the outstanding
membership fee because ‘I did not have it ’. As regards the complaint that he had

8 Rule 54.34 of the LPC rules provides:
‘54.34 An office opened by a firm, which for the first time opens a practice within the jurisdiction of a Provincial
Council, shall be designated as a main office of the firm in that jurisdiction, and the firm shall ensure that:
54.34.1 banking accounts for the firm are opened in that jurisdiction.
54.34.2 a separate set of accounting records is kept for each office.
. . . .’
9 Financial Intelligence Centre Act 38 of 2001 (FICA).
10 Section 85(1) (b) of the LPA, read with LPC rule 27.1.
11 Section 85(1) (a), read with s ub-secs (5) and (6) of the LPA.
8

failed to comply with the FICA provisions, the respondent stated that he had
registered and provided a FICA number to the LPC .

The high court’s judgment
[16] The application came before the high court on 18 January 2022. The high
court delivere d its judgment on 22 July 2022, concluding that the LPC had failed
to establish the complaints that the respondent had practised without a fidelity
fund certificate, and disrespected the LPC in his response. It further held that the
respondent’s ‘infractions were not that serious to warrant a declaration that he is
not fit and proper to practise as an attorney and his removal from the roll of
practising attorneys ’.

[17] The high court said that the respondent : (a) did not exhibit any dishonesty;
(b) was young and lacked experience; (c) was not inherently a dishonest person;
(d) failed to pay his membership fees because he was indigent ; and (e) was not
provided with guidance by the LPC . The high court concluded that attendance of
a Practice Management Course would serve as a corrective measure for the
respondent . For these reasons, the high court dismissed the application and
directed each party to pay its own costs.

In this Court
[18] The LPC is aggrieved by the order of the high court. It contended in this
Court that the high court misdirected itself in considering the complaints against
the respondent . The LPC submitted that the high court erred: (a) by not
conducting a complete factual enquiry to determine whether the alleged
misconduct had been established; (b) in respect of those portions of the factual
enquiry that it conducted; and (c) by failing to consider , cumulatively, the
respondent’s conduct.

9

The enquiry
[19] The proper approach to misconduct complaints against legal practitioners
is well -established and has been applied in many cases.12 It is a three -stage
enquiry. First, a court determines whether the complaint has been established on
a balance of probabilities. This is a fa ctual enquiry . If established, the court
enquires whether the practitioner is fit to remain on the roll of legal practitioners.
If he or she is not, the court must, in the third stage, determine a sanction: whether
the legal practitioner’s name should be removed from th e roll or merely be
suspended from practice for a determinate period. In the second and third stages,
a court exercises discretion.

[20] The discretion exercised in the second and third legs of the enquiry is a
strict one .13 Thus, a court of appeal may only interfere if the discretion was not
exercised judicially.14 This means that a court of appeal is not entitled to interfere
with the exercise by the lower court of its discretion unless it failed to bring an
unbiased judgment to bear on the issue; did not act for substantial reasons;
exercised its discretion capric iously, or exercised its discretion upon a wrong
principle or as a result of a material misdirection.15

The high court’s treatment of the enquiry
[21] After setting out the contentions of the parties, the high court made the
following conclusions:

12 General Council of the Bar of South Africa v Geach and Others, Pillay and Others v Pretoria Society of
Advocates and Another, Bezuidenthout v Pretoria Society of Advocates [2012] ZASCA 175; [2013] 1 All SA 393
(SCA); 2013 (2) SA 52 (SCA) para 50 ; Malan para 4; Jasat v Natal Law Society [2000] ZASCA 14; 2000 (3) SA
44 (SCA); [2000] 2 All SA 310 (A) para 10.
13 Kekana v Society of Advocates of SA [1998] ZASCA 54 ; 1998 (4) SA 649 at 654D -E; [1998] 3 All SA
577 (SCA) at 581.
14 Vassen v Law Society of the Cape of Good Hope [1998] ZASCA 47 ; 1998 (4) SA 532 (SCA) at 537D -F; [1998]
3 All SA 358 (A) at 361 -362.
15 Ibid. See also Mabaso v Law Society of the Northern Provinces and Another [2004] ZACC 8 ; 2005 2 SA
117 (CC); 2005 (2) BCLR 129 para 20; Giddey NO v JC Barnard & Partners [2006] ZACC 13 ; 2007 (5) SA
525 (CC); 2007 (2) BCLR 125 (CC) paras 20 and 21.

10

‘Taking into account the evidence before me, as correctly submitted by counsel for the first
respondent, I am not convinced that the applicant has proven on a balance of probabilities that
during 2020 the first respondent practiced as an attorney before he was issued with a Fidelity
Fund Certificate. I am further not convinced that in defending himself against the allegations
made by the applicant that the first respondent had shown disrespect towards the applicant in
his response to the applicant’s allegations. The first respondent might have been tardy in his
responses to the applicant and/or might have used inel egant language. However, the first
respondent’s conduct is not indicative of any intentional disrespect towards the applicant.

I am satisfied that the first respondent’s infractions were not that serious to warrant a
declaration that he is not fit and proper to practise as an attorney and his removal from the roll
of practising attorneys.’

[22] It is clear from the above passage that the high court misapplied the three -
stage enquiry by not properly conduct ing the first stage, ie a factual enquiry to
determine whether the complaints against the respondent had been established.
Earlier , we set out the seven complaints that the LPC placed before the court.
None of them, except that of practising without a fidelity fund certificate, was
investigated by th e high court. It merely mentioned the complaints and the
respondent’s response to them, without deciding whether, in respect of each,
misconduct had been established on a balance of probabilities.

[23] It is indeed not clear from the high court’s judgment whether it was
satisfied that any of the complaints had been established. This is because , while
it did not expressly make the necessary factual findings, the high court mention ed
the respondent’s ‘in fractions’, without indicating what those were. Regarding the
complaint about the fidelity fund certificate, t he high court found that it had not
been established on a balance of probabilities . It reached this conclusion without
any meaningful discussion. As I indicate later, this conclusion is not borne out by
the common cause facts.

11

[24] Furthermore, the high court considered irrelevant issues in arriving at its
conclusions. It said that: (a) the respondent was ‘young and inexperienced’; (b)
the LPC did not ‘proffer him any guidance’; and (c) his failure to pay his
membership fees was because he was indigent. These were not issues relied on
by the respondent in his answering affidavit. It was therefore not open to the high
court to factor them in as part of its reasoning. Both this Court and the
Constitutional Court have repeatedly warned against determining matters on
issues that do not arise from the papers .16

[25] The upshot of the above is that the high court materially misdirected itself
in the first stage of t he enquiry. It follows that the high court based its conclusions
in the second and third stages of the enquiry on a flawed premise . In the result,
this Court is at large to set aside the high court’s factual findings and consider the
enquiry afresh.17 I do so next, considering in turn, the LPC’s complaints against
the respondent .

Whether the complaints against the respondent were established: the first
enquiry
Practising without a valid fidelity fund certificate
[26] It is undisputed that between 9 October 2020 and 16 March 2021, the
respondent did not have a valid fidelity fund certificate. His answer to this
complaint is that he only commenced practice after being issued with the fidelity

16 Fischer and Another v Ramahlele and Others [2014] ZASCA 88; 2014 (4) SA 614 (SCA); [2014] 3 All SA 395
(SCA) paras 13 and 14; South African Police Service v Solidarity obo Barnard [2014] ZACC 23; 2014 (6) SA
123 (CC); [2014] 11 BLLR 1025 (CC); 2014 (10) BCLR 1195 (CC); (2014) 35 ILJ 2981 (CC) para 210; Molusi
& Others v Voges NO & Others [2016] ZACC 6; 2016 (3) SA 370 (CC); 2016 (7) BCLR 839 (CC) para 28; Four
Wheel Drive Accessory Distributors CC v Rattan NO ZASCA 124; 2019 (3) SA 451 (SCA) para 23;
Public Protector v South African Reserve Bank [2019] ZACC 29; 2019 (6) SA 253 (CC); 2019 (9) BCLR 1113
(CC); 2019 (6) SA 253 (CC) para 234; AmaBhungane Centre for Investigative Journalism NPC and Another v
Minister of Justice and Correctional Services and Others ; Minister of Police v AmaBhungane Centre for
Investigative Journalism NPC and Others [2021] ZACC 3; 2021 (3) SA 246 (CC); 2021 (4) BCLR 349 (CC) para
58.
17 Malan paras 12 and 13.

12

fund certificate. The respondent misses the point. In terms of s 84(1) of the LPA,
every attorney and tr ust account advocate who practis es or is deemed to practise
for his or her own account is required to have a fidelity fund certificate.

[27] The fact is that the respondent opened the firm and a trust banking account
and informed the LPC accordingly. Once this occurred, all the consequences of
an operative practice ensued. At the very least, he was deemed to have been in
practice, irrespective of whether or not he had clients during that period. He was
only issued with a fidelity fund certificate on 16 March 2021. That certificate was
withdrawn on 30 April 2021. Even though he was made aware of this withdrawal,
the respondent continued practising. The high court should therefore have found
that the respondent had practised without a fidelity fund certificate for the period
9 October 2020 to 16 March 2021 , and after 30 April 2021 when the certificate
was withdrawn . This complaint had thus been established.

FICA
[28] In terms of s 43B of FICA , read with regulation 27A (3), the firm was
obliged to register with the Financial Intelligence Centre (FIC) within 90 days
from the opening of the firm on 9 October 2020. Thus, the respondent had until
7 January 2021 to register the firm. Despite being advised to do so by the LPC in
October 2020, he failed to do so. This is a contravention of rule 18.17 of the
LPC’s Code of Conduct.18

Failure to immediately notify the LPC of Trust banking accounts
[29] Section 86(1) of the LPA requires e very attorney who practises for own
account to open and operate a trust banking account. Rule 54.16 of the LPC rules

18 Code of Conduct for All Legal Practitioners, Candidate Legal Practitioners and Juristic Entities. Published in
General Notice 168, Government Gazette 42337 of 29 March 2019 (The LPC Code of Conduct). The LPC Code
of Conduct provides that ‘[a]n attorney shall . . . take all such steps as may be necessary from time to time to
ensure compliance at all times as an accountable institution with the requireme nts of [FICA]’.
13

requires every firm to immediately notify the LPC in writing of the name and
address of the bank at which its trust banking account is kept. The respondent
opened the firm’s trust bank account on 4 November 2020, but failed to
immediately notify the LPC. His first attempt to do so was on 4 February 2021.
But he sent it to an incorrect email address. He rectified this on 12 February 2021 ,
when he used the LPC’s correct email address. There is no explanation for the
failure to inform the LPC of the trust account details immediately after the
account was opened on 4 November 2020. This complaint was thus established.

Non-compliant Trust bank account
[30] Rule 54.34 of the LPC rules requires that a legal practice’s trust account
should be opened in the area of the Provincial Council within whose jurisdiction
the firm’s main office is situated. The firm’s main office is in Gauteng, under the
jurisdiction of the Gauteng Provincial Council of the LPC. It is common cause
that the firm’s Trust bank account was opened in Polokwane, Limpopo Province ,
and not in Gauteng Province . This is in contravention of rule 54.34. The
respondent ’s answer to this complaint is that the LPC had not previously queried
this.

Membership fees
[31] Rule 4 of the LPC rules prescribes the payment of annual membership fees
by legal practitioners to the LPC. The fees are payable on or before 31 October
annually. The respondent failed to pay his membership fees for the year 2020 on
or before the due date, but only did so on 5 April 2021, after the application by
the LPC was launched. The respondent glibly stated that the reason he did not
pay the membership fee on time was that he ‘did not have it ’. There is no further
elaboration for this assertion.


14

Failure to reply to correspondence
[32] It is common cause that the respondent failed to respond to the letter
addressed to him by the LPC on 8 October 2020. This contravenes rule 16.1, 16.2,
16.3 and 16.4 of the LPC Code of Conduct .19

Whether the respondent is fit and proper to continue practice : the second
enquiry
[33] The sum total of the above is that the complaints against the respondent
have been established on a balance of probabilities. This leads me to the second
enquiry. A value judgment has to be made whether the respondent is a fit and
proper person to remain on the roll of attorneys. While some of the offences relate
to inattentiveness and lack of application, two are regarded as serious ,
ie practising without a fidelity fund certificate and failure to respond to
correspondence .

[34] As stated by this Court in Law Society of the Northern Provinces v
Mamatho ,20 practising without a fidelity fund certificate is a serious breach of an
attorney’s duty and a criminal offence. Regarding failure to respond to
correspondence, this Court , in Hewetson v Law Society of the Free State ,21
pointed out that this is a serious offence for which attorney s have been struck off
the roll , as it ‘not only speaks of a lack of courtesy, but constitutes a breach of
professional integrity ’.22

19 Rule 16 of the LPC Code of Conduct provides:
‘16. Replying to communications
An attorney -
16.1 shall within a reasonable time reply to all communications which require an answer unless there is good
cause for refusing an answer;
16.2 shall respond timeously and fully to requests from the Council for information and/or documentation which
he or she is able to provide;
16.3 shall comply timeously with directions from the Council; and
16.4 shall refrain from doing anything that may hamper the ability of the Council to carry out its functions.’
20 Law Society of the Northern Provinces v Mamatho [2003] ZASCA 82; 2003 (6) SA 467 (SCA) para 1.
21 Hewetson v Law Society of the Free State [2020] ZASCA 49; [2020] 3 All SA 15 (SCA); 2020 (5) SA 86
(SCA).
22 Ibid para 50.
15

[35] At the time of launching the application in the high court, the respondent
had still not: (a) been issued with a fidelity fund certificate; (b) paid his annual
fees; and (c) rectified his banking account by opening it in Gauteng in terms of
rule 54.34. When the appeal was heard in this Court, all the issues had been
resolved, except compliance with rule 54.34.

[36] I also consider the respondent’s conduct in the proceedings before the high
court. In his answer to the LPC’s application, instead of addressing the
complaints against him, the respondent resorted to impugning the integrity of the
LPC. For example, he stated that the LPC: (a) brought the application well
knowing that its allegations were baseless; (b) was ‘clutching at straws ’ to build
a ‘non-existent c ase’; and (c) twisted the facts.

[37] As a result, said the respondent , he was perplexed about the motive behind
the application. As stated, all the complaints by the LPC had been established.
The respondent ’s allegations were clearly intended to convey that the LPC had
sinister motives against him. These are serious insinuations against a professional
regulatory body whose function is, among others, to maintain ethical standards.
They should not be lightly m ade. In Law Society of the Northern Provinces v
Mogami (Mogami ),23 this Court warned against such conduct and pointed out that
this, in itself , constitutes unprofessional conduct and a strategy that the courts
cannot countenance.

[38] It behoves us to repeat that warning here. A time will soon arrive when
legal practitioners who make themselves guilty of this unprofessional conduct
risk being suspended from practice or struck off the roll, solely based on this , as

23 Law Society of the Northern Provinces v Mogami and Others [2009] Z ASCA 107; 2010 (1) SA 186 (SCA) ;
[2010] 1 All SA 315 (SCA) (Mogami ) para 26.
16

this may be indicative of , or border on , lack of fitness to practise as a legal
practitioner.

[39] The respondent’s attitude is troubling, particularly because he is a new
entrant into the profession. His real first encounter with the LPC has been
characterised by his failure to comply with his professional obligations. What is
more, the respondent has adopted an unjustifiably combative and hostile attitude
against the LPC. His answering affidavit exhibits a worrisome lack of candour.

[40] The respondent’s conduct necessitate s that the following trite principles be
restated. Proceedings such as the present are of their own kind and of a
disciplinary nature. The y are neither criminal nor civil proceedings between the
LPC and a respondent legal practitioner. The LPC, as a repository of professional
norms, places facts before the court for consideration for it to exercise its
discretion upon those facts .24 It is, therefore, expected of legal practitioners
against whom allegations of impropriety are made, to co -operate and provide the
necessary information, and to place the full facts before the Court to enable it to
make a correct decision. Broad denials and obstructionism, as we have seen in
the present case, have no place in these proceedings.25

[41] As mentioned, the respondent has made himself guilty by practising
without a fidelity fund certificate and failing to respond to the LPC’s
correspondence – two serious offences. Each one on its own attracts suspension
or striking off. He , however , rectified the situation in respect of the fidelity fund
certificate, and had been issued with one when the application was heard in the
high court. Regard being had to a conspectus of the facts, I conclude that although

24 Hassim v Incorporated Law Society of Natal 1977 (2) SA 757 (A) at 767 C-G; Law Society , Transvaal v
Matthews 1989 (4) SA 389 (T) at 393E; Cirota & Another v Law Society, Transvaal 1979 (1) SA 172 (A) at 187H;
Prokureursorde van Transvaal v Kleynhans 1995 (1) SA 839 (T) (Kleynhans ) at 851E -F.
25 Kleynhans above.
17

the respondent is guilty of unprofessional conduct, that does not render him un fit
to continue to practise as an attorney.

The sanction : the third enquiry
[42] The finding that the respondent is not unfit to continue to practice is not
the end of the enquiry. As this Court explained in Malan v Law Society of the
Northern Provinces (Malan ):26
‘As far as the second leg of the inquiry is concerned, it is well to remember that the Act
contemplates that where an attorney is guilty of unprofessional or dishonourable or unworthy
conduct different consequences may follow. The nature of the conduct may be such that it
establishes that the person is not a fit and proper person to continue to practise. In other
instances , the conduct may not be that serious and a law society may exercise its disciplinary
powers, particularly by imposing a fine or reprimanding the attorney (s 72(2) (a)). This does
not, however, mean that a court is powerless if it finds the attorney guilty of unprofessional
conduct where such conduct does not make him unfit to continue to practise as an attorney. In
such an event the court may discipline the attorney by su spending him from practice with or
without conditions or by reprimanding him . . .’27 (Emphasis added.)

[43] This Court is therefore entitled to discipline the respondent for his
misconduct, despite finding that he is not unfit to continue practice. The sanction
imposed for his unprofessional conduct should reflect the seriousness of his
conduct, and address the outstanding issue to ensure compliance. I consider that
a suspension for a period, which is wholly susp ended on certain conditions, would
be an appropriate sanction. The LPC has suggested a period of suspension for 18
months . In the circumstances of the case, I deem 12 months to be appropriate.




26 Malan and Another v Law Society of the Northern Provinces [2008] ZASCA 90; 2009 (1) SA 216 (S CA);
[2009] 1 All SA 133 (SCA).
27 Ibid para 5.
18

Costs
[44] The LPC had a statutory duty to approach the court. As stated, when the
application was launched , all the complaints against the respondent were live
issues, including the serious one of practising without a fidelity fund certificate.
The LPC was therefore entitled to approach the court to protect the public. It did
not do so as an ordinary litigant. Although the high court found that the
respondent had transgressed professional rules, it ordered each party to pay its
own costs. This is an unusual order in matters of this nature, as this Court
remarked in Mogami .28

[45] The general rule is that the LPC is entitled to its costs on an attorney and
client scale, even if unsuccessful.29 The high court paid no regard to these
principles. To that extent, it did not exercise its discretion judicially. The
respondent should have been ordered to pay the costs on an attorney and client
scale. A similar order should follow in this Court.

[46] In the result, the following order is made:
1 The applicat ion for postponement is refused with costs , to be paid by the first
respondent on an attorney and scale.
2 The appeal is upheld with costs on attorney and client scale.
3 The order of the Gauteng Division of the H igh Court, Pretoria is set aside and
replaced with the following:
‘1 The first respondent, Mr Kgetsepe Revenge Kgaphola, is suspended from
practic e as a legal practitioner for 12 months;
2 The period of suspension referred to above is wholly suspended on
condition that the first respondent:

28 Mogami para 31.
29 See, for example, Law Society of the Northern Provinces v Sonntag [2011] ZASCA 204; 2012 (1) SA 372
(SCA) para 20.
19

2.1 complies with rule 54.34 and rule 54.16 of Legal Practice Council within
30 days of this order;
2.2 does not contravene section 84(1) of the Legal Practice Act 28 of 2014
during the period of suspension;
2.3 is not found guilty of a contravention of rule 3.1 of the Legal Practice
Council’s Code of Conduct during the period of suspension;
3 The first respondent is ordered to pay the costs of this application on an
attorney and client scale.’



_____________________
T M MAKGOKA
JUDGE OF APPEAL



20

Appearances
For appellant : R M Stocker
Instructed by: Rooth & Wessels Inc ., Pretoria
Pieter Skein Attorneys, Bloemfontein

For respondents: S C Bereng (only for the postponement application)
Instructed by: Maladzhi & Sibuyi Attorneys Inc., Pretoria
Masia Attorneys Inc ., Bloemfontein.