HIGH COURT OF SO UT H AFRICA
(GA UT ENG DIVISION, PRETORIA )
In the m atter between:
C A SE NO: 23500/2020
(I) R E PORT A BL E: N O .
(2) O F INTE R EST TO O T H ER JU D GES: N O
(3) R EV ISE D .
DATE : 3 1 JULY 2025
S fGNATU R E I
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SOUTH AFRICAN LEGAL PRACTIC E CO UN CIL A pplicant
and
SIMPHIWE FRE E MAN DUB E R espondent
Summary: Legal practitioner seeking leave to appeal an order striking him from
the roll of legal practitioners. Found that the appeal would not have
a reasonable prospect of success and that there are no other
compelling reasons -why leave to appeal should be granted. The
requirements set out in Section 17(J)(a) of the Superior Cou rts Act
10 of 2013 have not been met. Leave to appeal refused
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ORDER
The application for leave to appeal is refused with costs, on the scale as
between attorney and client.
JU D G ME N T (In the application for leave to appeal)
The matter was heard in open court and the judgment was prepared and authored
by the judge whose name is reflected herein and was handed down electronically
by circulation to the parties ' legal representatives by email and by uploading it
to the electronic file of the matter on Caselines. The date of the handing-down is
deemed to be 31 July 2025.
DA VIS ADJP (with Lenyai J (Ms) concurring)
Introduction
[l] On 27 August 2021 this court, then constituted by Tlhapi J (Ms) and
Mnyovu AJ (Ms), referred an application launched by the Legal Practice Council
(the LPC) against Mr Freeman Dube (the legal practitioner), to a freshly
constituted bench for determination (the referral order). The application was to
strike the practitioner from the roll or to suspend him from practice.
[2) The referral order provided that the determination to be made must be done
after hearing oral evidence on two aspects. In addition, the LPC was ordered to
"avail the respondent [the legal practitioner] with all the documents ;t acquired
from different sources" . . . pertaining to one of the aspects referred to oral
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evidence, being a bill of costs forming the subject matter of a complaint by one
of the legal practitioner's erstwhile clients.
[3] On 29 August 2023 the legal practitioner's belated application for leave to
appeal the referral order was refused.
[ 4] Over the course of a number of days during March 2025 this court heard
oral evidence in respect of the aspects referred to oral evidence and argument
from both parties in respect of the LPC's application as a whole, which has been
supplemented from time to time in respect of additional offending conduct
alleged against the legal practitioner.
[5] On 15 April 2025 this court ordered that the legal practitioner be struck
from the roll of legal practitioners (the striking off order).
[6] On 13 June 2025 this court beard an application for leave to appeal the
striking off order. This is the judgment in respect of this latter application for
leave to appeal.
The legal practitioner's grounds for seeking leave to appeal
[7] In the written application for leave to appeal, numerous grounds were
listed.
[8] In oral argument however, Adv Mokotedi SC , who had been acting for the
legal practitioner since at least the previous application for leave to appeal,
limited the argument to five points. These were the following:
- has the bar been raised in respect of the test for granting leave to appeal?
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- the determination to be made by the court was limited to only the two
aspects referred to oral evidence and it was not permitted to consider
the striking-off application de novo.
- the court had not been entitled to consider the LPC's supplementary
founding affidavits.
- it was in the interest of justice that leave to appeal be granted.
- it was "unfair" to saddle the legal practitioner with costs, particularly as
there had been "flaws" in the judgment pertaining to the referral order.
The test for leave to appeal
(9] We find it unnecessary to enter into the debate as to whether the use of the
word "would" in relation to prospects of appeal, used in section 17 (l)(a) of the
Superior Co urts Act1 has raised the bar when compared with the wording of the
previous Act, as mentioned in a number of judgments2.
[ 1 O] We will content ourselves, in assessing whether the test mentioned in
Section l 7(l)(a)(i) of the Superior Courts Act has been met, with the following
formulation of the test by the Supreme Court of Appeal3 "An applicant for leave
to appeal must convince the court on proper grounds that there is a reasonable
prospect or realistic chance of success on appeal. A mere possibility of success,
an arguable case or one 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".
1 10 of 2013.
2 Such as in Acting NDPP v DA (2016) ZAGPPHC 489 (24 June 2016); Mototo v Free State Gambling Board [2017]
ZAFSHC 80 and Notshokovu v S [2016) ZASCA 112 (7 September 2016).
3 In MECfor Health, Eastern Cape v Mkhitha and Ano (2016] ZASCA 176 (25 November 2016 at par (17].
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[11] As set out hereunder, we conclude that the legal practitioner does not have
such reasonable prospects of success on appeal. If the bar has been raised, as Adv
Mokotedi SC himself contended it has, then the legal practitioner's application
should even more so fail.
Did the referral order limit the ambit of this court's powers?
[ 12] The contents of the initial order have substantively been dealt with in our
previous judgment. It is clear from the wording of the order that the whole of the
application had been referred for consideration by a freshly constituted bench.
The only rider was that, in respect of two aspects, oral evidence had to be heard
and considered.
[13] The legal practitioner's contention was that the previous court, in the
judgment delivered when granting the refe1Tal order, had already partially
completed the first one, or even two of the three steps required for orders of
striking off, and that we simply had to conclude, after having heard oral evidence,
what the appropriate sanction should be.
[14] The above reasoning is, with respect to those who had formulated it,
flawed. It would mean that two different courts, constituted by different judges
would, in a piecemeal fashion and independent of each other, but in a composite
fashion exercise the value judgments and discretion required in matters of this
nature. This proposition merely has to be stated to illustrate its absurdity. Courts
simply do not fashion in this manner and, from a reading of the initial order, this
is simply not what had been contemplated or ordered.
[ 15] The absurdity of this piecemeal approach had also been debated during the
legal practitioner's previous application for leave to appeal the referral order, and
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it had, in our view correctly so, then already been rejected4. We also reject this
argument and find that there is no sound or rational basis that another court would
come to a different conclusion.
Should the supplementary affidavits have been allowed and considered?
[16] In our view this aspect has sufficiently been dealt with in our previous
judgment. The point is simply that the LPC has the obligation to put all evidence
it has of offending conduct before a court to enable a court to make up its own
mind whether a legal practitioner is still fit and proper to practice law.
[ 17] The sui generis nature of applications of this kind and the duty of a legal
practitioner to actively deal with allegations of offending conduct5, required in
our view that the legal practitioner should have properly dealt with the contents
of the supplementary affidavits, rather than ignore them and, at the end of a
protracted matter, after their contents have been debated, argue that they should
be ignored. As we have previously indicated, the LPC has on numerous
occasions, both in case management proceedings and in writing, invited the
respondent to deal with these affidavits. Despite ample opportunity, he has failed
to do so.
[18] Again, we find no sound, rational basis to conclude that there 1s a
reasonable prospect that a court of appeal "would" find otherwise.
Interests of justice
[19] Section l 7(1)(a)(ii) provides that, as a separate ground, a court may grant
leave to appeal if the interests of justice require it to do so. This would generally
4 See par 14 of the judgment of De Vos AJ with which Ledwaba ADJP had agreed in respect of the previous
application for leave to appeal.
5 Prokureursorde van Transvaal v Kleynhans 1995 (1) SA 839 (T) and Hepp/e v Law Society of the Northern
Provinces (2014] ZASCA 75 (29 May 2014) at par 3.
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be where conflicting judgments by lower courts need to be reconciled or
considered by a court of appeal or when the broader interests of society may be
impacted by a judgment.
[20] In the present instance there are no conflicting judgments. In fact, as
indicated before, the legal practitioner had previously been alerted by the
Supreme Court of Appeal of his duties and obligations as a legal practitioner
when he had previously been suspended from practice6.
[21] There are also no other broader societal issues which would indicate that it
would be in the interests of justice that leave to appeal be granted. The application
should therefore fail in respect of this ground.
The "fairness" of the costs orders
[22] We have considered the issue of costs afresh and found no flaw in the
manner in which we had exercised our discretion after a due consideration of the
matter, which could have given rise to a reasonable prospect that a court of appeal
would order otherwise. Similarly, in respect of the present application, we find
that costs should also follow the event, on the same scale as before.
Conclusion
[23] In the premises, we find that the legal practitioner has not satisfied the tests
set out in sections 17(1)(a)(i) and (ii) of the Superior Coutts Act.
Order
[24] Accordingly, the following order is granted:
The application for leave to appeal is refused with costs, on the scale as
between attorney and client.
6 Law Society of the Northern Provinces v Dube (2012] 4 All SA 251 (SCA).
I agree
D ate of Hearing: 13 June 2025
Judgment delivered: 31 July 2025
AP PEARANCES:
For the Applicant:
Attorney for the Applicant:
For the Respondent:
Attorney for the Respondent:
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Judge of the High Court
Gauteng Division, Pretoria
M ENYAI
Judge of the H igh Court
Gauteng Division, Pretoria
Mr R Stocker together with Ms N Co11ett
Rooth & We ssels Inc., Pretoria
Adv K Mokotedi SC
VM Netshipale Attorneys
c/o Dube (Freeman) Attorneys Inc.,
Pretoria