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REPU BLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 34484/2017
(1) REPO RTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
DATE 9/6/25
SIGNATURE
In the matter between:
THE SOUTH AFRICAN LEGAL PRACTICE COUNCIL Applicant
and
MANDLA MACBETH NCONGWANE First R espondent
MACBETH ATTORNEYS INCORPORATED Second Respondent
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 mat ter on
Caselines . The date f or han d-down is deemed to be 9 June 2025.
Summary: Application to strike a legal practitioner off the roll of legal
practitioners – not fit and proper. A bsent any accounting, an inference must be
drawn that the practitioner has misappropriated trust funds. Funds kept in a
money market account in the name of the legal practitioner’s law firm are not
funds kept in terms of section 78( 2A) of the old Act and s ection 86(4) of the
new Act. A practitioner who misappropriates trust funds is unfit and improper
to remain on the roll of legal practitioners. The application was ripe to be
determined by this Court, given the sui generis nature of the application .
Applic ation succeeds and draft order adopted as order of Court.
JUDGMENT
CORAM: MOSHOANA , J (FRANCIS -SUBBIAH, J CONCURRING)
Introduction
[1] In South Africa , a person shall not be admitted and enrolled as a legal
practitioner unless he or she is a fit and proper person to be so admitted . Section
24(1) of the Le gal Practice Act (LPA)1 provides that a person may only practice as a
legal practitioner if he or she is admitted and enrol led as such in terms of the Act.
These legal requirements simply imply that inside the circle of legal practitioner s,
reside s only fit and proper persons. Once a person lo ses the characteristics of being
fit and proper , he or she ought to be spewed out of the circle because he or she
becomes a square peg in a round hole . Effective lawyering takes a great deal of
patience , diligence, hard work, systematic drilling and strategy , and always a
measured temperamen t. There are no shortcuts , no instant gratification and no
guaranteed wealth - only diligence and sheer hard work . Almost always , there will be
1 Act 2 8 of 2014 as amended.
satisfaction for a job well done and one will earn the respect of one ’s clients and
colleagues by reason of adherence to p rofessional standards and inte grity.2
[2] The enquiry before a Court called upon to exercise the power to strike a
practi tioner’s name from the roll , the veritable question is not whether the sentence
fits the crime but whether the public shall , by the striking off , be protected in the
future or not. The ultimate question is whether it is appropriate to permit a legal
practitioner to continue to practice despite bein g an unfit and improper person.
[3] In determining whether a legal practitioner has misappropriated trust funds, ‘it
matters not whether the legal practitioner received any personal benefit from taking
the funds. Nor does it matter that the legal practitioner intended to or did return the
funds in short order, that he or she was acting in response to severe personal
financial pressures, or that the amount of money taken was relatively small ’.3
[4] More recently, the Supreme Court of Appeal , in the matter of South African
Legal Practice Council v Kgaphola and Ano ther (Kgaphola ),4 expressed itself in the
following terms:
“[19] The proper approach to misconduct complaints against legal
practitioner is well -established and has been applied in many cases. It is a
three -stage enquiry. First, a court determines whether the complaint has been
established on a balance of probabilities. This is a factual 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 the roll or merely be suspended from practice for a determinate period. In
the second and t hird stages, a court exercises discretion.” [footnotes omitted].
2 Slabbert “The requirement of being a “fit and proper” person for the legal profession ” (2011) vol. 1 4
PER 209 quoting Pityana as Principal and Vice Chancellor, UNISA in an address to the Black Lawyers
Association (BLA) 30th Anniversary 9 November 2007.
3 See Gellert (Re) , 2013 LSBC 22 (CanLII) at para 72.
4 [2025] ZASCA 66 .
[5] In the present application, although the applicant, the South African Legal
Practice Council (SALPC) exposed to the Court about six acts of misconduct ,5 the
one relating to Ms . Wezi Beverly Jumbe (Ms . Jumbe) is the most serious one, since
it involves allegations of misappropriation of trust money. In this judgment, most
attention shall be paid to Ms. Jumbe’s complaint.
[6] It is the Ms. Jumbe’s complaint that produced not less than five judgments of
this Court, since the year 2012. For the purposes of this judgment, the litigious
history of the present application shall not be considered. Such history is littered in
various judgments of this Court. It will serve no purpose other tha n elongating this
judgment. In this judgment, the three -stage enquiry shall be engaged in since the
SALPC now seeks an order striking Mr. Mandla Macbeth Ncongwane (Mr.
Ncongwane) from the roll of legal practitioners.
[7] The present application agitates the question of whether the respondent , Mr.
Ncongwane , is a fit and proper person to be allowed back to the vulnerable members
of the public , who are consumers of legal services, as a legal practitioner. Differently
put, now that, by virtue of his misfeasance , he has become a s quare peg , can this
Court possibly return him to the round hole?
Background facts pertinent to the application
[8] Mr. Ncongwane is an admitted legal practitioner, who practices as an attorney
under the name and style of Macbeth Attorneys Incorporated, the second respondent
in the present application. Ms. Jumbe was involved in a motor vehicle accident on 4
November 2006. She sustained very serious injuries. She engaged the services of
Mr. Ncongwane to institute a delictual action against the Road Accident Fund (RAF) .
Dutifully, Mr. Ncongwane carried out the instructions. The RAF made various offers
attempting to settle the claim.
5 Ms. Jumbe’s complaint; Mr. Christo Sm ith’s complaint (contempt of court orders); Ms. Mosehla’s
complaint (neglected the affairs of client); Ms. Mkhwanazi’s complaint (accepted offer without
instructions); Mr. Ndzimande’s complaint (failure to answer); Kruger Moeletsi Attorneys’ complaint
(failure to account and discover benefits money).
[9] On or about 14 September 2012, an offer of payment of an amount of
R 5 139 152, including a se ction 17(4) undertaking was made in favour of Ms.
Jumbe. Upon consultation with counsel, the offer of payment was not accepted. On
29 November 2012, a revised offer of payment of R 5 432 784 was again made. This
offer was accepted . On 12 December 2012 , the amount was paid into the trust
account of the firm of Mr. Ncongwane. At the time when the offers were made and
accepted, the trial date was set on 24 May 2013.
[10] On 24 May 2013, the action of Ms. Jumbe came before the trial roll Court
beaconed by the Deput y Judge President (DJP) of the Division. On that day , an
order was made that (a) the net proceeds of the payments due to Ms. Jumbe after
the deduction of attorney and own client costs shall be payable by Mr. Ncongwane to
a trust to be created within 12 mon ths of the date of the order; (b) the trust deed
already drafted was to be signed within 30 days of the order; (c) the objectives of the
trust be the controlling and administration of the capital amount on behalf of Ms.
Jumbe; (d) have as its trustees, Mr. Ncongwane, Ms. Sibongile Chimimba, and Mr.
Friday Jumbe; (e) should a trust not be created within 12 months, the court must be
approached within one month thereafter in order to obtain further directives in
respect of the manner in which the capital amoun t is to be utilised in favour of Ms.
Jumbe; (f) pending the appointment of trustees to take control of the capital amount,
Mr. Ncongwane was authorised to invest the amount in terms of section 78(2A) of
the repealed Attorneys Act; (g) other than any reason able payments to satisfy any of
Ms. Jumbe’s needs that may arise and that are required in order to satisfy any
reasonable need for treatment, care, aids or equipment that may arise in the interim,
Mr. Ncongwane was prohibited from dealing with the capital in any other manner
unless specifically authorised by the Court.
[11] Despite the Court orders outlined above, various payments were made from the
capital funds, ranging from a R 30 000 loan allegedly made to Ms. Jumbe, R 25 000
paid towards the trip and hotel expenses in Malawi, R 100 000 payment made to
Forex; and various Ewallet payments; payments to House and Homes Furniture and
Boardmans .6 Following the turn of events relating to payments, one attorney , Mr.
Cloete , intervened on behalf of Ms. Jumbe and approached the Court on 4
November 2016 for an order appointing a curator ad litem on behalf of Ms. Jumbe.
Ultimately, the appointed curator, Advocate Nel , launched urgent applications against
Mr. Ncongwane.
[12] Of perti nence is the order made by Molahlehi AJ, as he then was. Amongst
other orders, the learned judge instructed the predecessor of the applicant to
investigate the financial affairs of the law firm. Such an instruction saw the
predecessor resolving to obtainin g an order seeking a suspension of Mr.
Ncongwane. Around 2017, an application was launched seeking a suspension. An
order suspending Mr. Ncongwane was not obtained , instead, one Mr. Vincent Farris
was dispatched by the predecessor to investigate the allega tions. Owing to the
insufficiency of records, Mr. Farris could not give a conclusive report (Farris report) .
[13] Of pertinence to the present application is that , on or about 13 March 2013 , an
amount of R 4 000 000 was transferred from the trust account of th e firm to a money
market account. For a period from 13 March 2013 to September 2016, an amount of
R 3 909 255.04 was withdrawn from the money market account. According to Mr.
Ncongwane, the money market account was the section 78(2A) of the old Act
account . The SALPC disagrees and contends that the account was a transactional
account and was not opened in the name of Ms. Jumbe as required by the section.
As of 30 September 2017, according to Mr. Farris , the balance in that account was
R 665 458.47.
[14] The Far ris report further revealed that an amount of R 473 400.99 was paid by
the RAF in respect of costs. Only R 149 587.54 was paid into the money market
account. The balance remained in the trust banking account. The Farris report
concluded that there was no p roper accounting made in respect of Ms. Jumbe. He
also concluded that even if a valid contingency fee arrangement was entered into,
the fee entitlement would have been R 1 168 048.56. The Farris report , other than
calling for the debatement of the accounts, concluded that the firm contravened
6 A list of payments from 15 June 2012 up to 12 March 2017 is annexed and marked “MMN11” .
section 86(4)(a) of the LPA as well as section 87 thereof read with rules 35.5 and
35.9 of the new rules. Section 86(4)(a) was contravened because the firm failed t o
account to the client. As a parting shot, Mr. Farris opined that the Legal Practice
Fidelity Fund continues to be at risk. Mr . Ncongwane and his legal team accepted
the Farris report to be legal. The other reports were rejected.
[15] Ultimately, on 04 June 2 024, this Court , beaconed by Madam Justice Basson
and Acting Justice Spunzi, entertained the application seeking to suspend Mr .
Ncongwane from practising . The full bench was satisfied that a case for suspension
was made. Resultantly, Mr. Ncongwane was susp ended pending the finalisation of
the application for the removal of his name from the roll of legal practitioners. On 28
November 2024, Mr . Ncongwane was to show cause why his name should not be
removed from the roll of legal practitioners. Various other orders relating to the filing
of supplementary affidavits were also made. This, notwithstanding, the parties failed
to supplement their papers within the period ordered. Instead, Mr . Ncongwane
proceeded with applications seeking to appeal and stay the oper ation of the order of
4 June 2024. All such applications were dismissed. On 28 November 2024, this
Court extended the rule nisi and further afforded the parties an opportunity to file
supplementary affidavits. Only the SALPC grabbed that opportunity. Mr . Ncongwane ,
again , failed to supplement his papers , instead, he sought to divert this application to
the process of the Ombud. He asked that the experts should meet and produce joint
minutes before the matter could return to Court. The SALPC refused to meet the
ask.
[16] Ultimately, on 22 -23 May 2025, the present application emerged before us. We
were told about an application for a postponement, which application was not moved
by Mr. Ncongwane’s counsel or legal team. Instead, a unique and unprocedural ask
was m ade for this Court to find that the application was not ripe for a hearing.
Further, an ask was made that a conditional supplementary affidavit encapsulating a
report by Mr. Ncongwane’s auditor be submitted. After listening to argument for and
against thes e asks, this Court reserved its rulings. Regarding the ask for submission
of the conditional supplementary affidavit accompanied by an auditor’s report,
counsel for Mr. Ncongwane conceded that the report of Mr. Reddy states that it is
inconclusive because of lack of documentation, as such , the unrevealed auditor’s
report will have nothing to counter. After hearing all the relevant submissions, this
Court reserved its judgment. In this judgment , issue s relating to these asks shall be
dealt with.
Analysis
[17] Before this Court engages in the three -staged enquiry, it must deal with the
preliminary asks first. At the commencement of the hearing of the application,
counsel for Mr. Ncongwane argued that the application was not ripe for a hearing
and this C ourt must extend the rule nisi to August 2025 and order that the application
be transferred to the Mpumalanga Division of the High Court. Such was resisted by
the SALPC.
Is the application ripe for hearing?
[18] First and foremost, this is an application sui generis . The SALPC does not
serve as a notional applicant. It is a statutory body that is obligated to bring to the
attention of this Court, the conduct of legal practitioners for censure and or discipline.
Both the legal practitioner and the SALPC must bring facts to a Court to exercise its
disciplinary powers. To my mind , the doctrine of ripeness finds no application in
applications of this nature. What finds application is the common law principle of audi
alteram partem .
[19] The doctrine of ripeness is well developed in American Law. In the matter of
Pacific Gas Electric Co v State Energy Resources Conservation and Development
Commission (Pacific ),7 the United State s Supreme Court, held that the rationale
behin d the ripeness requirement is to enable courts to avoid becoming entangled in
abstract disagreements with other branches of government. Further, it held that in
deciding whether to apply the doctrine as a bar to consideration of the merits of a
case , the c ourts have considered the hardship to the parties of withholding court
consideration.
7 461 US 190 (1983).
[20] The doctrine of ripeness has also been considered by various courts in South
Africa, pre and post the Constitution. As a culmination, in Permanent Secretary,
Department of Welfare, Eastern Cape , and Another v Ngxuza and Others
(Permanent Secretary ),8 the erudite Cameron JA expressed disapproval of the
conduct of the respondent, who raised every stratagem and device and obstruction,
every legal argument and non-argument that it thought lay to hand , including
contradictory arguments as to ripeness and mootness.
[21] In casu , Mr. Ncongwane was afforded an opportunity to submit a
supplementary affidavit. He, for reasons that are not apparent , spurned that
opportunity. Thus, it does not avail to him to, having spurned the opportunity , to raise
ripeness as a stratagem. Permanent Secretary9 has already expressed disapproval
of such stratagem. In Kgaphola ,10 the SCA dismissed an application for a
postponement of an appeal with an order of punitive costs. Like the present ask, the
ask was made from the bar with no substantive application in support of the ask.
[22] The ask for application of the doctrine of ripeness was predicated on four
grounds; name ly, (i) the compliance with the Ombud process; (ii) the need for the
exchange of affidavits; (iii) lack of jurisdiction; and (iv) pending appeal against the
order of 4 June 2024. Briefly, this Court shall consider all these grounds ad seriatim .
The compl iance with the Ombud process
[23] In seeking to persuade this Court, Mr. Shakoane SC referred to the provisions
of sections 46, 47 and 48 of the LPA. In addition, he referred to correspondence
sneaked unprocedurally, as it were, where the Ombud was critical of the approach of
the SALPC. This Court takes a view that the power to discipline legal practitioners is
that of a Court. Now that this Court is seized with the matter, no other statutory body
can wrestle, as it were, the matter out of the hands of a Court. Accordingly, this Court
concludes that the SALPC has not contravened sections 46, 47 and 48 of the LPA as
8 2001 (4) SA 1184 (SCA) at para 14.
9 Id.
10 Above n 4.
contended by calling upon this Court to exercise its disciplinary powers as opposed
to entertaining the call of the Ombud . This Court is far from bein g convinced that this
application should have been delayed for reasons of the Ombud process. Curiously,
for reasons not spelled out anywhere, the engagement of the Ombud happened
extremely late in the day. Mr. Ncongwane was already suspended and an
opportu nity for him to supplement his papers was already extended. It is beyond
perspicuous that the late engagement was a stratagem. Considering the objects of
the Ombud and its functions set out in sections 46 and 48, discipline of legal
practitioners is off it s bound s. Accordingly, t his argument must fail.
Exchange of affidavits .
[24] This is a baseless decry. On 28 November 2024, this Court made a specific
order regarding the exchange of affidavits. Mr. Ncongwane is , in effect , in contempt
of that order. Having breached the clear Court order, it does not avail to him to now
decry breach of section 9 and 34 of the Constitution. Without any further ado, this
ask was unnecessary, considering that even on 4 June 2024, an opportunity was
availed for Mr . Ncongwane to s ubmit supplementary affidavits. For these brief
reasons, a further ask for exchange of affidavits amounts to abuse of court process
and falls to be dismissed. A similar approach was adopted and rejected by this Court
in South African Legal Practice Council v Selota (Selota ).11 The approach adopted by
Mr. Ncongwane is not dissimilar to the one adopted by Mr . Selota . An allegation that
the SALPC acted oppressively and unfairly is without basis. The SCA in Kgaphola12
found that unjustifiably impugning the integrity of a regulatory body without basis is a
professional misconduct.
[25] There is no legal basis to contend that the provisions of section 9 and 34 of
the Constitution ha ve been breached.
Lack of jurisdiction
11 [2025] ZAGPPHC 475 .
12 Above n 4.
[26] The argument that this Court lost its jurisdictional power after Mr . Ncongwane
was transferred to a chapter of the SALPC that fal ls within the jurisdiction of the
Mpumalanga Division of the High Court is rejected . As at the time of such transfer,
these proceedings were already commenced in this Court in 2017. There is no
application contemplated in section 27 of the Superior Courts Act13 seeking an order
to transfer the present application to the Mpumalanga Division of the High Court.
This Court retains jurisdiction and has been exercising it since 2017. In 1909, the full
bench in Ueckermann v Feinstein (Feinstein)14concluded that a defendant who laid
by for a period of nine months without attacking a jurisdiction of a Court has
acquiesced to the jurisdiction of a Court falling outside his territory. The argument of
lack of jurisdiction must fail.
Pending appeal
[27] It is doubted by this Court that the order of 4 June 2024 is appealable. Its life
span was limited. On determination of the question whether Mr . Ncongwane must or
must not be removed from the roll, the impugned order of 4 June 2024 falls away.
There is nothing t hat prevents this Court from consider ing the question of removal
even if the appeal against the interim order pends. Accordingly, the argument of lack
of powers to determine the present application must also fail . The approach taken by
the Court in Selota15 is apt and applies with sufficient, if not more, vigour in the
present application .
The ask for conditional delivery of the supplementary affidavit accompanied by the
undisclosed audit report.
[28] On 28 November 2024, the earlier full bench made an order as to when
further affidavits may be delivered. For reasons that have not been spelled out
anywhere, Mr . Ncongwane resolved to ignore the Court order. Yet again, he was in
contempt. This ask for delivery of supplementary affidavit accompanied by the
13 Act 10 of 2013.
14 1909 TS 913. This case was cited with approval in Hay Management Consultants v P3
Management Consultants (439/03) delivered 30 November 2004 marked “reportable”.
15 Above n 11.
undisclosed auditor’s report was also made from the bar. Yet again, Mr . Ncongwane
eschewed the launching of a substantive application. This kind of an approach was
derided by the Supreme Court of Appeal in Kgaphola .16 Asks of this nature ought to
be made t hrough a substantive application and should not be relegated to “from the
bar” applications. This becomes more compelling in a situation where there was a
contempt of court order to deliver affidavits.
[29] What compounded this ask is that it was only revealed on the second day of
argument. It emerged as a request for guidance from the bench. Mr . Ncongwane
was represented by three counsel, amongst of whom was a senior counsel. If the
auditor’s report was critical to the defence of Mr . Ncongwane, same ought to h ave
been availed shortly after 28 November 2024. It is inappropriate for a legal
practitioner facing serious allegation s to simply adopt a supine approach. At the time
of this ask, it was almost six months after a Court had afforded Mr . Ncongwane an
opport unity to supplement his answer to the misconduct allegations. As indicated
above, what is required is to afford any party an audi alteram partem . The present
application emerged as far back as 2017. Mr . Ncongwane effectively had almost
eight years to provi de an answer to the allegations related to Ms. Jumbe.
[30] Because of all the above reasons, the ask was not justified and could not be
accommodated by this Court. A simple explanation was required. That was , what
happened to the funds held in trust on behalf of Ms . Jumbe? Since the funds were
deposited around December 2012 , all the records relating to the funds must be in
hand.
The merits of the application
[31] It is common cause that an amount of R 5 432 784 was paid into the trust
account held by the firm. It is also common cause that on 24 May 2013, the Court
directed that a Trust must be created to receive the net proceeds of the capital
amount due to Ms. Jumbe. The Trust was to be established by 24 May 2014, failing
which , the Court was to be approached to provide further directions on the usage of
16 Above n 4.
the capital amount. The Court specifically ordered that whilst the process of
establishing the Trust is underway, the net proceeds must be invested in terms of
section 78(2A) of the repealed Attorneys Act. There is a dispute as to whether there
was a valid contingency fees agree ment. Even if this Court is to depart from the
premise that there was a valid contingency fees agreement, the monetary value of
the 25% was set out by Mr. Farris in his report.
[32] Considering that which Mr. Farris state s to be the fees due to the firm, a
substantial amount ought to have remained in the trust account of the firm. The bank
statements of the trust account revealed certain withdrawals attached to the capital
amount. Amongst those, on 2 February 2013, an amount of R 100 000 was paid
towards a Fore x account. On the available evidence , by 24 May 2014, there is no
indication that a Trust was formed as ordered. Additionally, there is no evidence that
Mr. Ncongwane returned to this Court for further directions on how to handle the
capital amount.
[33] Most importantly, there is no evidence that the net proceeds due to Ms.
Jumbe were invested as ordered. In due course , this Court shall briefly consider the
provisions of the old and the new Act regarding investments on behalf of a trust
creditor. On 13 Ma rch 20 13, months before the order of Court directing the net
proceeds to be invested, an amount of R 4 000 000 was withdrawn against the
balance standing in favour of Ms. Jumbe. According to Mr. Ncongwane, the amount
was invested in accordance with section 78(2A) of the old Act. I interpose to mention
that the letter dated 28 March 2025, signed by one Ms. Nozipho Ntshangase looks
suspicious. The statements of the account in question reflect that the account is held
at 1 Parkin Street Nelspruit. The letter i ndicates that the FNB Commercial branch
that issued it is situated at 9 Friedman Drive Sandton . The text of the letter looks
extremely unprofessional. Perhaps an investigation into the authenticity of this letter
is warranted. This letter was purposed to c onvey confirmation of the account to be a
section 78(2A) account. An affidavit would have carried far much weight perhaps.
However, there is no evidence that the interest earned was paid over to Ms. Jumbe.
The SALPC contends, which contention is accepted b y this Court , that the money
market account was a transactional account in favour of the firm and not an
investment account in favour of Ms. Jumbe.
[34] The contention is supported by incontestable evidence of the bank statements
of the Money Market Investment with account number 6[...], reflecting that the
account holder is Macbeth Inc of 25 Samora Machel Drive Nelspruit. Over a period
of about three years , 2013 -2016 , various transactions occurred in that account.
Amongst the various dubious transactions , laid a n amount of R 1 000 000, which
was withdrawn on 17 September 2013 and identified as contingency fees. On 19
September 2013, an amount of R 350 000 was withdrawn to be invested. There is no
indication as to where it was invested. As of 30 September 2016, the remaining
balance in t hat account was R 1 606 321.99. As of 30 June 2024, the closing
balance on that account was R 427 219.91.
[35] On 6 June 2018, an amount of R 11 000 was paid towards High Landrover. It
is undisputed that out of the funds held in favour of Ms. Jumbe , a Ranger R over
motor vehicle , registered in the name of Mr. Ncongwane , was purchased. That the
Range Rover was purchased on behalf of Ms. Jumbe, who had no driver’s licence,
was long rejected by Molahlehi AJ. On 1 February 2021, an amount of R 154 085.17
was withdra wn in favour of Willowcrest for rental of a property owned by Mr.
Ncongwane. On 7 May 2024 , two separate amounts were withdrawn in respect of
rental and arrears thereof. Those were, R 18 260.95 and R 27 174.30 respectively.
Of significance , these withdrawa ls occurred three days after an order suspending Mr.
Ncongwane. In terms of the 4 June 2024 Court order , a curator bonis was appointed
to administer and control the trust accounts of the firm.
[36] As of the hearing of this application, the firm had not accoun ted to Ms. Jumbe
regarding the net proceeds of the capital funds nor the interest earned in her favour
out of the investment account. Regard being had to the balance as of 30 June 2024,
the only reasonable inference to be drawn is that the funds of Ms. Jum be have been
misappropriated. Regard being had to the abovestated conduct, this Court is
satisfied that the SALPC has proven the contraventions outlined in the Farris report
on the balance of probabilities. Accordingly, the first leg of the enquiry has bee n
established. Before turning to the remaining legs, which call for a value judgment to
be made, it is appropriate to turn to the question whether the R 4 000 000 was
deposited in a section 78(2A) account or not.
Was there a section 78(2A) investment acco unt or not?
[37] Section 78(2A) provides as follows:
“Any separate trust savings or other interest -bearing account –
a. Which is opened by a practitioner for the purpose of investing therein,
on the instructions of any person , any money deposited in his trust
banking account; and
b. Over which the practitioner exercises exclusive control as trustee,
agent or stakeholder or in any other fiduciary capacity, shall contain a
reference to this subsection. ”
[38] Section 86(4) of the LPA has replaced section 78(2A), and it reads thus:
“A trust account practice may, on the instructions of any person , open a
trust savings account or other interest -bearing account for the purposes of
investing therein any money deposited in the trust account of that practice, on
behalf of such person over which the practice exercises exclusive control as a
trustee, agent or stakeholder or in any other fiduciary capacity.”
[39] Section 86(5) of the LPA provides that:
“Interest accrued on money deposited in terms of this section must, in the
case of money deposited in terms of –
a. …
b. Subsection (4), be paid over to the person referred to in that
subsection : Provided that 5% of the interest accrued on money in terms
of this paragraph must be paid over to the Fund and vests in the Fund.”
[40] Considering the evidence presented before this Court, the account opened by
the firm does not meet the requirements of the sec tion. There is no evidence that the
Money Market account was opened on the instructions of Ms. Jumbe. At the time it
was opened and funds deposited therein; the Court order of 24 May 2013 was not in
place. Considering the transactions that occurred in that account, it is beyond
perspicuous that the trust funds of Ms. Jumbe were misappropriated. The money is
effectively lost into a black hole , never to return to Ms. Jumbe. I now turn to the
remaining requirements.
Is Mr. Ncongwane fit and proper to remain on the roll of legal practitioners?
[41] This is a requirement that calls for an exercise of value judgment, regard
being had to the alleged contraventions. At this point, the cumulative effect of all the
allegations is considered. Overwhelmingly, the ev idence demonstrates that Mr.
Ncongwane has a penchant for disregarding the authority of the Court as a
constitutional institution. He disobeyed several Court orders, and he appears to be
nonchalant about it. In his Court papers, there is no iota of apology or a reflection of
remorse. Clearly, Mr. Ncongwane is not a fit and proper person to remain on the roll
of legal practitioners. In Kgaphola ,17 the SCA remarked thus:
“[33] The sum total of the above is that complaints against the respondent
have been est ablished 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, i.e. practising without a fidelity fund certificate and failure to respond
to correspondence.”
[42] In Selota ,18 dealing with the question of fit and properness, the Court
remarked thus:
“[113] An attorney’s duty in regard to the preservation of trust money is
fundamental, positive and unqualified duty. Neither negligence nor wilfulness
is an element of a breach of such duty. Where trust money is paid to an
attorney it is his/her duty to keep it in his/her possession and to use it for no
17 Above n 4.
18 Above n 11.
other purpose than that of the trust. It is inherent in such a trust that the
attorney should at all times have available liquid f unds in an equivalent
amount. The very essence of a trust is the absence of risk. It is imperative that
trust money in the possession of an attorney should be available to his/her
client the instant it becomes payable. Trust money is generally payable befo re
and not after demand.”
[43] In his affidavit , deposed to in July 2017, Mr. Ncongwane availed an annexure
demonstrating how the funds of Ms. Jumbe were used. From the very annexure, it is
perspicuous that the funds were misappropriated or misused. The use wa s not in line
with the 24 May 2013 order. Accordingly, a value judgment is formed that Mr.
Ncongwane is not a fit and proper person to remain on the roll of legal practitioners.
What is the appropriate sanction?
[44] As confirmed in Kgaphola ,19 the seriousnes s of the conduct guides a Court at
this stage. A perplexing suggestion was made by counsel for Mr. Ncongwane that
there are individuals within the SALPC that are effectively baying for the blood of Mr.
Ncongwane. They singled him out of Mpumalanga practiti oners to “deal” with him.
There is absolutely no merit in this suggestion . The duty to impose a sanction on a
practitioner remains that of a Court. The fact that Mr. Farris suggested a debatement
of accounts is of no moment. Mr . Farris and Reddy were provi ded with insufficient
information. Mr. Ncongwane had a duty to disclos e all the necessary information to
enable this Court to perform its duties. When the conduct of Mr. Ncongwane is
considered cumulatively, the only appropriate sanction is that of removal from the
roll. Mr . Farris reached a conclusion that Mr. Ncongwane continues to be a risk to the
Fund.
[45] This Court takes a view that Mr. Ncongwane is a danger to the consumers of
legal services, when his conduct is appropriately evaluated. In Selota ,20 the Court
echoed these sentiments with such sagacity. It said:
19 Above n 4.
20 Above n 11.
“[132] However, when one takes the totality of transgressions into account,
this court would be failing in its duty were we not to find that the cumulative
effect of the offending conduct demands that the respondent be struck of the
roll of practitioners.”
[46] Similar sentiments must be expressed in t his matter. Considering that there is
little balance left in the supposed section 78(2A) account, it must be inferred that the
money was stolen. The theft of money held in trust is a weighty consideration
militating against any lesser sanction than removal .21
[47] For all the above reasons, I make the following order :
1. The draft order marked “X” and annexed to this judgment is made an
order of this Court.
___________________________
GN MOSHOANA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
___________________________
R FRANCIS -SUBBIAH
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
(I agree and it is so ordered)
APPEARANCES:
21 See Vassen v Law Society of the Cape of Good Hope 1998 (4) SA 532 (SCA) at 53 9B-C.
As per the draft order.
Date of the hearing: 22-23 May 2025
Date of judgment: 9 June 2025