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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 2024 -103400
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
DATE : 23/5/25
SIGNATURE
In the matter between:
In the matter between:
SOUTH AFRICAN LEGAL PRACTICE COUNCIL Applicant
and
VICTOR MDUNGASI MASHELE Respond ent
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives by e -mail and by uploading it to the electronic file of this matter on
Caselines . The date and fo r hand -down is deemed to be 21 May 2025 .
Summary: An attorney who misappropriates trust funds is to be regarded as
being unfit and improper to remain on the roll of legal practitioners. The
sanction of removal from the roll is the most appropriate sanction to be
imposed by this Court. Held: (1 ) The draft order marked X and attached to this
judgment is made an order of this Court.
JUDGMENT
MOSHOANA, J (MBONGWE J CONCURRING)
Introduction
[1] The learned Justice of Appeal, His Lordship , Mr Justice Eksteen in Vassen v
Law Society of the Cape of Good Ho pe (Vassen )1, expressed himself in the
following terms:
“In this regard, it must be borne in mind that the profession of an
attorney, as an officer of the Court, is an honourable profession which
demands complete honesty, reliability and integrity from it s members,
and it is the duty of the respondent Society to ensure, as far as it is
able, that its members measure up to the high standards demanded of
them. A client who entrusts his affairs to an attorney must be able to
rest assured that that attorney is an honourable man who can be
trusted to manage his affairs meticulously and honestly. When money
is entrusted to an attorney or when money comes to an attorney to be
held in trust, the general public is entitled to expect that that money will
not be used for any other purpose than that which it is being held, and
that it will be available to be paid to the persons on whose behalf it is
1 1998 (4) SA 532 (SCA) at 538G.
held, whenever it is required… The theft of money held by him in
trust … is, in my view, indeed a weighty consideration militating
against any lesser stricture than his removal from the roll …”
[2] Involved in the present application is theft of trust money or misappropriation of
trust funds. The present is an unopposed applicatio n launched by the South
African Legal Practice Council (LPC) against Mr Victor Mdungasi Mashele (Mr
Mashele), an admitted attorney of the High Court of South Africa. It suffices to
mention that in November 2024, Mr Mashele filed a notice of intention to de fend
the present application. Despite endless indulgence s given to Mr Mashele, he
failed, with extreme reticence to deliver an answering affidavit, out of which
affidavit, his thoughts about the alleged misconduct would have been revealed.
[3] The LPC has rev ealed to this Court various acts of misconduct. Mr Mashele
was aware of those serious allegations of misconduct, involving
misappropriation of trust funds, since September 2024. For reasons best known
to Mr Mashele, since then, he failed to present a versi on to this Court. From this
Court’s point of view , the complaints of Ms K[...] and the minor child are very
serious, since they involve misappropriation of trust funds. It was expected of
Mr Mashele to immediately provide an answer to those complaints. I nstead,
when the LPC supplemented its founding papers in April 2025, Mr Mashele,
with due respect to him, cunningly observed a window of an opportunity to seek
to delay the finalisation of this application. He did so by submitting an extremely
emaciated ap plication seeking a postponement.
[4] Such an application for postponement was launched on the eve of the hearing
of the present application. Wittingly and adroitly, the LPC saw through the
cunningness of Mr Mashele and resisted the quest for the postponement of the
application. Having listene d to argument for and against the eleventh -hour
application for postponement, this Court per my brother Mbongwe J swiftly
delivered an ex tempore ruling on the postponement application. This judgment
has nothing further to add to the reasons advanced ex te mpore . It suffices to
comment in passing that counsel for Mr Mashele wittingly conceded that the
application was manifestly puny. A postponement of a matter is not there for
the mere taking. Mr Mashele deliberately failed to disclose a relevant factor that
he was indulged on two occasions but still failed to provide an answer . He
opportunistically attempted to effectively pull wool over the eyes of this Court,
when a supplementary affidavit was delivered. To that, he decried prejudice,
when he, for almost e ight months lied supine.
[5] Howbeit, in considering the present application, this Court focused on the
complaints detailed in the founding affidavit. This Court was far from being
impressed by the posture of Mr Mashele to launch the postponement
application woefully late with no palpable explanation as to why. Having refused
a postponement, the application was considered on the unopposed basis.
Pertinent background facts and evidence
[6] On 19 June 2001, Mr Mashele was admitted as an attorney of the High Court.
On the available evidence, he practices as a sole practitioner. It is not the
intention of this Court to suggest that other complaints of misconduct are not
serious enough. Taken cumulatively, they are. However, as indicated at the
dawn of this judgment, th e complaints of Ms K[...] and the minor child are more
serious to justify the removal of Mr Mashele from the roll of legal practitioners. It
is for that reason that facts pertinent to her complaint are outlined and of
necessity form the basis of the deci sion reached by this Court at the end.
[7] Concisely, Ms K[...] instructed Mr Mashele to lodge a claim of loss of support
against the Road Accident Fund (RAF) on her and the minor child’s behalf. Mr
Mashele dutifully lodged such a claim. On or about 10 Dece mber 2020, the
RAF offered to settle the claims of Ms K[...] and the minor child in the amounts
of R2 097 214.50 and R698 935 respectively. On 21 May 2021, an amount of
R2 796 149.50 was paid by the RAF into the trust account operated by Mr
Mashele. Mr M ashele failed to account fully to Ms K[...]. After almost a year, he
paid certain amounts to Ms K[...]. Ultimately an amount of R1 200 000.00 was
paid to Ms K[...]. The 25% of contingency fees due to Mr Mashele was in the
region of about R699 037.37. Having paid out the sum of R1 200 000.00 to Ms
K[...], an amount of around R897 112.13 ought to have remained in the trust
account o perated by Mr Mashele.
[8] An auditor, appointed by the LPC, after having failed to obtain co -operation
from Mr Mashele, obtained financial records from the banking institutions .
According to the records submitted by Mr Mashele to the LPC, for the financial
year ending 2021 February, the trust creditors of the law firm of Mr Mashele
was reflected as R161 046.78. The records so submitted, falsely reflected that
the bank account balance equals the reflected trust creditors. The
investigations revealed that in truth the bank balance for 2021 was R3013.51.
Such suggested a deficit of R158 033.27 based on the trust credit ors divulged,
but not verified, by Mr Mashele. This picture simply confirms that the amount of
R897 112.13 due to Ms K[...] and the minor child has disappeared. For the year
2022, the trust account position depicted a further deficit to the tune of
R279 443.52.
[9] Evidence was presented which demonstrated that funds were indiscriminately
transferred from the trust account to the business account and the personal
account of Mr Mashele held at the First National Bank (FNB). As at 12 June
2021, the trust bank balance was R292.36 . It was alle ged that an amount of
R500 000 was invested and the investor has since met his demise . Similarly, it
was also alleged that an amount of R200 000.00 was paid over to the in -laws of
Ms K[...]. Her instruction was for Mr Mash ele to pay over R200 000 to the in -
laws, yet Mr Mashele withdrew , without her instructions , an amount of
R300 000 from the trust fun ds. The additional R100 000 was allegedly for the
payment of unexplained party and party costs. For a period of time, Mr Mas hele
practised without the Fidelity Fund Certificate (FFC).
[10] Based on the above facts, Ms K[...] and the minor child did not receive all the
monies due to them and that money is no longer in the trust account operated
by Mr Mashele.
Evaluation
[11] This Cour t departs from the premise that all the allegations detailed by the LPC
remain uncontroverted. Mr Mashele spurned an opportunity afforded to him to
provide an explanation with regard to the complaints . Given the seriousness of
the allegations, it must have dawned on Mr Mashele that his career as a legal
practitioner was on the line. Non chalant , he remained . The approach taken by
Mr Mashele is not necessarily uncommon. This Court , witnesses it , in a
plethora of applications of this nature. In my considered view , this approach is
not only unhel pful to a practitioner, but it is actually a fati gued one ready to be
jettisoned at once by practi tioners facing serious allegations like
misappropriation of trust funds .
[12] The views and or versions of practi tioners are invaluable in applications of this
nature. Undoubtedly, regard being had to the complaint of Ms K[...] and the
minor child alone, the offending conduct has been proven on the balance of
probabilities by the LPC as the custos morum . It is beyon d perspicuous that the
funds due to Ms K[...] and the minor child were misappropriated. Having
misappropriated trust funds, undoubtedly, Mr Mashele is no longer a fit and
proper person to remain on the roll of legal practitioners.
[13] With regard to sanctio n, the complaint of Ms K[...] and the minor child alone
warrants the removal of Mr Mashele from the roll of legal practitioners. The
sentiments echoed by the erudite Eksteen JA remain true to this day and apply
with equal vigour , if not more, in the present instance. This Court remain s
bound by those felicitous ly expressed sentiments.
[14] As indicated earlier, cumulatively, the three complaints detailed in the founding
affidavit of the LPC warrant s a removal from the roll, particularly in the
circu mstances where Mr Mashele , for reasons best known to him , failed to take
this Court into his confidence. His reticence speaks louder in this regard. In an
application of this nature, the LPC is not a complainant.
[15] The members of the public are actually the complain ants. It is inappropriate and
actually remiss for this Court to allow a person who is not fit and proper to
continue to practice as an attorney. The public at large will remain vulnerable .
Accordingly, this Court is constrained to adopt the propos ed draft order of the
LPC and make it its order.
[16] On account of all the above reasons, I propose to make the following order :
Order
1. The draft order marked X and attached to this judgment is and be
made an order of this Court.
____________________________
GN MOSHOANA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
__________________________
M MBO NGWE
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
(I agree and it is so ordered)
APPEARANCES:
As per the draft order marked X
Date of the hearing: 15 May 2025
Date of judgment : 21 May 2025