SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case number: 50378/2021
(1) REPORTABLE: NO
(2) OF INTEREST TO THE JUDGES: NO
(3) REVISED.
DATE: 06/10/2025
SIGNATURE:
In the matter between:
THE SOUTH AFRICAN LEGAL PRACTICE COUNCIL Applicant
And
MOLATELO JOYCE MAHAPA Respondent
This matter was heard in open court and the judgment was prepared and authored
by the judge whose name is reflected herein and is handed down electronically by
circulation to the parties’ legal representatives by email and uploading it to the
electronic file of this matter on Caseline. The date for hand -down is deemed to be
the 06 October 2025.
JUDGEMENT
LEDWABA AJ
Introduction
[1] The respondent was admitted as an attorney on the 22 nd August 2000. She
practiced for her own account under the name and style of Mahapa Attorneys.
[2] The applicant's case is that around the 15 th November 2018, Black Property
Investors deposited into the respondent's trust account an amount of R466 000.00
for the purchase of property described as Erf 6[...] Garankuwa, unit 1 Township ( the
property). The respondent's instruction was to pay to the seller, Ms Denise
Rakgobalela, the purchase price and use the balance for transfer and registration
costs.
[3] It is common cause that there was no transfer of the property and that the
seller did not receive the purchase price. The respondent did not refund the
deposited money to Black Property Investors.
[4] On the receipt of the complaint from Black Property Investors and around the
7th November 2019 the respondent was invited to respond to the complaint by no
later than the 9 th December 2019, failing which the matter would be referred to an
Investigation Committee. On behalf of the respondent and by way of the letter dated
the 9th and delivered at the applicant's office on the 11th December 2019, Mr Mathipa
undertook that the respondent would respond before the 30 th January 2020. The
applicant granted the extension to the 30th January 2020 but the respondent failed to
respond as arranged.
(5] Attempts by Ms Vilakazi, applicant's senior secretary, to arrange a meeting to
inspect the respondent's books were unsuccessful. Ms Vilakazi visited the
respondent's offices on the 22nd September 2020 and found that the respondent was
not at her offi ce. Zwakele advised Ms Vilakazi that the respondent was at the office
in the morning and advised that the respondent's office had no telephone and that
the respondent could only be contacted on her cellphone.
[6] On the 16 th November 2020, 20 th November 2020 and 14 th December 2020
Ms Ponnusamy from the applicant's office made unscheduled visit to the
respondent's office to inspect the respondent's accounting records. The respondent's
offices were locked.
[7] Several emails, telephone communications and th e visits to the respondent's
office did not yield the expected results of scheduling the meeting with the
respondent.
[8] The respondent's failure to respond to the applicant's communication request
for meeting constitute misconduct as envisaged in Rule 1 6.1 of the Rules made in
terms of section 95(1), 95(3) and 109(2) of the Legal Practice Act 28 of 2014 (the
Act). The Rules made in terms of section 95(1), 95(3) and 109(2) of the Act are
referred to as the Rules.
[9] The applicant's investigations revealed that the respondent's trust account
bank statement reflected that on or about the 15 November 2018 an amount of R466
000.00 was deposited into the account. The account further reflected that there was
no payment to the property seller or refund to Black Property Investors and that as at
the 31st December 2020, the respondent's bank trust account had a credit balance of
only R9. 63.
[10] The applicant contends that as at the 31 st December 2020, an amount of
R465 990.37 due to Black Property Investors was not available in the respondent's
bank trust account. It contends that the respondent contravened the provisions of
Rules 54.14.8 and 54.14.9 of the Rules. This is because the respondent's trust
banking account reflect ed the deficit credit balance of less than the total amount of
the credit balances of the trust creditors. The Black Property Investors trust account
is in debit.
[11] The respondent failed to report this shortage is required by Rules 54.14.10
and 11 of the Rules.
[12] The respondent's trust books position could not be established as the
respondent's accounting books were not available. These books would not reflect the
money that is not available in the respondent's trust account.
[13] The respondent do es not deny receiving money from the Black Property
Investors but in unable to account for it.
[14] Trust shortage points to the misappropriation of trust funds which is serious
misconduct warranting the respondent being struck from the roll of legal prac titioners.
[15] Another complaint was received from Adv J Prinsloo on the 30 th November
2021. He complained that he was briefed by the respondent on the 28 th August 2019
to attend the urgent court but was not paid for the services he rendered. The
applicant says the respondent failed to respond to several communications from Adv
J Prinsloo and the invitation from the applicant to respond to the complaint. Having
failed to attend the scheduled meeting of the Investigation Committee, the committee
recommended that the respondent's misconduct of failing to reply to communications
and failure to pay for professional services rendered at her request be investigated
by a disciplinary committee.1
[16] The respondent denies having met and briefed Adv J Prinsloo. In her
supplementary affidavit, the respondent contends that Adv J Prinsloo spoke directly
to client Ms Dimakatso Mpane and when the counsel submitted to her the statement
of account, Ms Dimakatso Mpane advised the respondent to forward it to her then
attorneys JJR Inc. Paragraph 7 of the respondent's heads of arguments contends
that Adv J Prinsloo appeared in court without a brief.
[17] The applicant asserts that the respondent has not been issued with Fidelity
Certificates for the years commencing January 2019, January 2020 and January
2021 as required by section 84(1) Act. 2 The applicant submits that the contravention
of section 84(1) read with 93(8) of the Act constitute not only professional
misconduct, but also criminal offence which on conviction may lead struck off the r oll
of legal practitioners.
1 In terms of ssection 37(3) (a) of the Act the Investigation Commit tee is empowered to refer any
matter to the Council for adjudication by a disciplinary committee.
2 Paragraph 6.3 founding affidavit- Caslines 001-36
[18] The respondent denies that she did not have the 2019 and 2020 Fidelity
Certificates. As annexure MJM 4 to her answering affidavit, she attached the 2020
Fidelity Certificate. She says the 2019 certificate is in Limpopo and she is still waiting
to hear from the applicant why she was not issued with the 2021 certificate, despite
the fact that she is allegedly up to date with all governance compliance requirement.3
[19] Absent the 2021 Fidelity Certificate means that in terms of section 84(2) of the
Act, the respondent should not be holding Black Property Investors trust money.
[20] The respondent says that she has not been well since 2018 to be at work.
She called the applicant's office and spoke to Mrs J Herholdt who told her that the
matter was referred to the disciplinary committee.
[21] The applicant took the position that the respondent had contravened the
provisions of the Act, the Code of Conduct for legal p ractitioners as well as several
provisions of the Rules.
[22] At the centre of the charge is that the respondent is not in possession of the
2021 Fidelity Certificate and has misappropriated trust funds in contravention of the
Rules made in terms of the Act.
[23] By way of the two -part application dated the 6 th October 2021 and in terms of
the Act, the applicant prayed for the striking off of the roll of the respondent from the
roll of practicing legal practitioners, alternatively that the respondent be suspended
from practice for such period and on such conditions as the court the court may
deem fit.
[24] The applicant contends that the application is of a sui generis nature, wherein
the applicant, as the custos morum, places information before court for the court to
exercise its discretionary powers in relations to officers of the court.
3 Paragraph 6.16 answering affidavit- caselines 002-10
[25] The respondent delivered notice of intention to oppose dated the 9 th
November 2021.
[26] She disputed urgency and that interdict requirements were not met.
[27] She conceded that the Black Property Investors deposited into her trust
account an amount of R466 000.00. She stated that part of the money was used to
obtain Municipality clearance certificate and that the documents were lodged and
rejected by the Deeds O ffice. This resulted in the delay in the finalisation of the
transfer process.
[28] She states that her tight schedule between Limpopo and North West
provinces did not enable her an opportunity to consult with client on the risk of
making purchase price payment before the finalisation of the transfer process.
[29] The respondent contends that internal processes to give her the right to be
heard were not complied with. She contends that there was no disciplinary hearing
for the complaint to be ventilated a nd for her to give her side. She contends that
there was unfair discrimination and treatment towards the respondent.
[30] She states that the applicant used her old email to contact her. She did not
receive those emails. She says the applicant made it di fficult to arrange a mutual
date for a meeting. The applicant replies that it used all the three emails used by the
respondent.
[31] There is no record of the disciplinary hearing recommended by the
Investigating Committee. This does not necessarily mean that the respondent was
denied the right to be heard. The applicant's version is that the respondent did not
co operate with the applicant from the time when the applicant attempted to set up
the meeting with the respondent.4
4 The applicant referred to se ctions 40(3)(a)(iv) and 44(1) of the Act. This give this court the power to
adjudicate upon and make appropriate orders in respect of matters concerning the conduct of a legal
practitioner.
[32] Part A application, initially set down for the 18 th October 2021, was finalised
on the 16 th February 2022 when on urgent basis, the respondent was suspended
from practice pending the finalisation of Part B to have the respondent's name struck
from the roll of legal practitioners. Leave to appeal was denied on the 24 th December
2023. The leave to appeal application court found not only that the condonation
application had to fail, but also th at the court was not persuaded that there were
reasonable prospects that another court could come to a different conclusion in
respect of the order suspending the respondent.5
[33] The leave to appeal judgment states that before the judgm ent of the 16 th
February 2022, the main matter was postponed three times. The matter was
removed from the roll of the 26th October 2021 to allow for proper service of the
application. The matter was adjourned to allow the respondent to supplement the
answering affidavit. It was also adjourned because the respondent was bedridden
after being exposed to Covid- 9. It says despite being so directed by court order, the
respondent had failed to file her supplementary affidavit.
[34] The letter from the Deputy Pr esident dated the 4 th March 2024 directed that
Part B be set down for hearing on the 28 th May 2024. It further directed that the
respondent deliver her supplementary affidavit by the 13 th March 2024 with the
applicant directed to deliver the supplementary replying affidavit within ten days
thereafter. The heads of arguments were directed to be delivered by the applicant
and the respondent respectfully by the 10 th and 24 th April 2024. The joint practice
minutes and the joint chronology to delivered no later than he 3rd May 2024.
[35] The respondent's supplementary affidavit and its condonation application
were served under filing cover dated the 28 th May 2024. Condonation application
supporting affidavit states that the supplementary affidavit was delivered fifty nine
supporting affidavit states that the supplementary affidavit was delivered fifty nine
days late. The respondent states the reason for the delay to be that she had lost
contact with Mr Matjie Mathipa (former candidate attorney) and Mrs Dimakatso
Mpane (respondent's client) who were not available in time to provide the respondent
with their confirmatory affidavits.
5 Caslines 014-7
[36] Condonation applicant is required to furnish full and reasonable explanation
for the non-compliance with court's Rules. This includes a reasonable explanation for
the period of the delay. An unsatisfactory and unac ceptable explanation for any of
the periods of delay will normally exclude the grant of condonation, no matter what
prospects of success on the merits.6
[37] There is no point in granting condonation if there are no prospects of
success.7
[38] Without a reasonable and acceptable explanation for the delay, the prospects
of success are immaterial and without prospects of success, no matter how good the
explanation for the delay, an application for condonation should be refused.8
[39] The standard for considering condonation application i s the interest of
justice.9
[40] There are no p rospects of success on the merits in this case. The
condonation application fails.
[41] On the 30 th May 2024, the Full Bench postponed Part B sine die with the
order that the supplementary affidavit be uploaded to caselines within five days, with
the replying affidavit to be uploaded within ten days of the court order. The applicant
was ordered to deliver the heads of argument by the 20 th June 2024 and the
respondent's heads to be filed by the 4th July 2024.
[42] On the 14 th July 2024, the Full Bench orde red that the respondent was
afforded a final postponement to secure a legal representative. The applicant was
6 Makhubela v S, Majake v S (2017) ZACC36; 2017(2) SACR665(CC); 2017(12) BCLR1510 - par 21;
National Union of Mineworkers of South Africa & Another v HIiiside Aluminium (2005) ZALC 25 ;
(2005) 6 BLLR 602(LC) - par 6
7 Melane v Santam Insurance Co Ltd 1962(4) SA S32(A) at 532C-F.
8 National Union of Mineworkers v Council for Mineral Technology (1998) ZALAC 22; (1999) 3 BLLR
209(LAC) at page 211 paragraph G-H
9 Ferris v First Rand Bank Ltd [2013] ZACC 46, 2014(3) BCLR 321(CC), 2014(3) SA 39(CC) at
9 Ferris v First Rand Bank Ltd [2013] ZACC 46, 2014(3) BCLR 321(CC), 2014(3) SA 39(CC) at
paragraphs 10 -12, Van Wyk v Unitas Hospital & Another (2007) ZACC 24; 2008(2) SA 472(CC);
2008(4)BCLR 442(CC) -par 20
permitted to approach the Registrar for a preferential date. 10 There were other
postponements orders made at the respondent's in stance before that of the 14th July
2024.11
[43] On the 19th August 2025 the respondent appeared in person and without filing
written postponement application, requested that the matter be postponed to enable
her to deal with the estate to raise fees to brief counsel. During engagement from the
bar, the respondent could say what else did she wish to place before court.
[44] The postponement application was struck off the roll with judgment in respect
of the main application reserved.12
[45] The postponement application was struck off t he roll because apart from the
fact that the respondent had made no written postponement application with reasons,
on the 14 th July 2024 the Full Bench of this division ordered the final postponement
to enable the respondent to secure legal representation.
[46] The court order of the 14 th July 2024 is the judgment referred to in section
165(5) of the Constitution. In terms of section 165(5) of the Constitution, an order or
decision binds all persons to whom it applies, whether correctly or incorrectly granted
and must be obeyed unless and until properly set aside.13
[47] Granting the respondent postponement request would result in the court order
contrary to the one ordered on the 14th July 2024.
[48] Part B prays that the the respondent's name be struck off from the roll of legal
practitioners. The applicant contends that its role is not that of an ordinary
adversarial litigant, but to bring evidence of the respondent's misconduct to the
10 Caselines 000-11
11 The postponement from the 2 nd December 2021to the 25 th January 2022 to enable the respondent
to file further supplementary affidavit. On the 25 th January 2022, the matter was postponed to the 15 th
February 2022 to enable the respondent to file supplementary affidavit and medical certificate.
12 Caselines 000-13
12 Caselines 000-13
13 District Six Committee & Other s v Minister of Rural Development & Land Reform & Others (2019)
ZALCC 13- par 89 Municipal Manager OR Tambo District Municipality & Another v Ndabeni (2022)
ZACC 3; 2023 (4) SA 421( CC); (2022) 5 BLLR 393(CC) par 23 and 24; Department of Transport &
Others v Tasima (Pty) Limited (2016) ZACC 39;2017(2) SA 622(CC); 2017 (1)BCLR 19CC) par 147 -9
attention of the court, in the interest o f the court, the profession and the public at
large , to enable the court to exercise its disciplinary powers.14
[49] The applicant contends that the respondent's conduct c onstitutes such a
deviation from the standard of professional conduct that she is not a fit and proper
person to continue to practice as a legal practitioner. It contends that the respondent
is guilty of unprofessional or dishonourable or unworthy conduct on the part of a
legal practitioner in that she allegedly contravened various Rules of the Attorneys
Profession, the Attorneys Act, the Act, the code of Conduct and the South African
Legal Practice Council Rules.
[50] The applicant submits that the respondent's conduct reveals character defects
which cannot be tolerated in a practitioner or officer of the Court and does not meet
the standard of behaviour, conduct and reputation which is required of a legal
practitioner and of an officer of the court.
[51] The applicant contends that this court's jurisdiction to exercise disciplinary
jurisdiction over the respondent and to pronounce upon an appropriate sanction is
not derived only from the provisions of section 40(3) (a)(iv) and 44(1) of the Act, but
also from inherent and common law power.
[52] Section 40(3)(a)(iv) of the Act provides that a disciplinary committee may
advise Council to, inter alia, apply to the High Court for an order striking a legal
practitioner from the roll or suspending a legal practi tioner from practising as an
attorney and/or prohibiting him/her from dealing with the trust funds.
[53] Section 43 of the Act provides that, if upon considering a complaint, a
disciplinary body is satisfied that a legal practitioner has misappropriated fund or is
guilty of other serious misconduct, it must inform the Council thereof with a view to
the Counci l instituting urgent proceedings to suspend a legal practitioner from
practice and to obtain alternative relief.
practice and to obtain alternative relief.
14 Van Der Berg v General Council of the Bar of South Africa (2007) ZASCAA 16 - par 2
[54] Section 44 of the Act provides that the provisions of the Act do not derogate in
any way from the power of the Courts to adjudicate upon and make orders in respect
of matters concerning the conduct of a legal practitioner or a juristic entity.
[55] The applicant contends that the respondent is in contravention of the Act, the
Code of Conduct and the Rules. She was accused of unprofessional , dishonourable
and unworthy conduct.
[56] Even accepting that there is dispute whether the respondent failed to respond
to the applicant's communication and whether Adv J Prinsloo was briefed by
respondent, the respondent faces serious charges relating t o the handling of trust
funds.
[57] The applicant contends that the respondent has contravened the provisions of
Chapter 7 of the Act, which deals with the handling of trust monies.
[58] The respondent concedes that she practiced without being in possess ion of
the Fidelity Certificate referred to in section 84(2) of the Act for the period of January
to December 2022. She is unable to account for the money deposited in her trust
account by Black Property Investors. Her trust bank account reflects shortage.
[59] The respondent has been on suspension from practice for the past three
years since 16th February 2022.
[60] There is no basis to delay that the respondent's name be struck off from the
roll of practicing legal practitioners.
[61] There is reason why the respondent should not be ordered to pay the costs.
Order
[1] The respondent's condonation application is dismissed.
[2] The respondent, Molatelo Joyce Mahapa, is hereby struck from the roll of
practicing practitioners.
[3] Subject to the amendment of order number 5, the relief granted by this court
on the 16th February 2022, attached hereto as MM, will remain in force.
[4] Order number 5 of the older of the 16 th February 2022 is amended by
removing the name of Johan van Staden to read as follows:
'5. That the Director/Acting Director and or nominee, of the Gauteng Provincial
Office of the Applicant, to be appointed as curator bonis’
[5] The respondent is directed:
(a) To pay, in terms of section 87(2) of the Legal Practice Act 28 of 2014,
the reasonable and proven costs of the inspection of her accounting records.
(b) To pay the reasonable fees and expenses of the curator.
(c) To pay the reasonable expenses proven to be related to this
application
[6] The respondent is directed to pay the costs of this application on attorney and
client scale.
LEDWABA LGP
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION: PRETORIA
Date of hearing: 19 August 2025
Date of judgment: 06 October 2025
I agree.
JANSE VAN NIEUWENHUIZEN J
UDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION
APPEARANCES:
For applicant: B Mphokane
Attorneys for the applicant: Mphokane Attorneys
For respondent: In person