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[2025] ZAFSHC 362
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Khomarie v The Legal Practice Council: Free State (246/2023) [2025] ZAFSHC 362 (20 November 2025)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Not
reportable
Case
no: 261/2023
In
the matter between:
NNAPA
JOSEPH KHOMARIE
APPLICANT
[Identity
number:
740[…]
]
[For
his admission as enrolment as a legal practitioner]
and
THE
LEGAL PRACTICE COUNCIL: FREE STATE
RESPONDENT
Neutral
Citation:
Khomarie v The Legal Practice
Council: Free State
(261/2023)
[2025] ZAFSHC 362
(20
November 2025)
Coram:
VAN ZYL J et DE LA REY AJ
Heard:
24 July 2025
Delivered:
20 November 2025
Summary:
Admission as a legal practitioner – negligent mistake not
indicative of a dishonest person – applicant a fit and proper
person to be admitted.
ORDER
1
Nnapa Joseph Khomarie, is admitted
and enrolled as a legal
practitioner of this Honourable Court and the Legal Practice Council
is authorised to enter the name of
the applicant on the roll of
attorneys of the honourable court in terms of s 24 read with
s 30
of
the
Legal Practice Act 28 of 2014
.
2
Each party to pay its own costs.
JUDGMENT
De
la Rey AJ
Introduction
[1]
The
applicant seeks to be admitted as a legal practitioner of the high
court of South Africa. An
ex
parte
application
seeking such admission was initially set down for the hearing on 1
June 2023 but was removed by applicant’s attorneys.
Even though
the application was brought
ex
parte
it
is opposed by the Legal Practice Council, Free State Provincial
Office, hereafter referred to as the LPC. Following the filing
of
supplementary, opposing and replying affidavits the application was
eventually re-enrolled for hearing on the 24
th
of July 2025. The essence of the LPC’s opposition is that the
applicant has failed to show that he is a fit and proper person
to be
admitted.
[1]
Background
[2]
In his application for admission the applicant avers
that he has
never applied for admission, nor has he been admitted as a legal
practitioner in the Republic of South Africa, nor
has he applied for
or is he admitted in any other country. The applicant furthermore
stated that he has never been subjected to
any previous disciplinary
proceedings by the respondent or any law society but states that he
was subjected to disciplinary proceedings
by his former employee the
National Prosecuting Authority, which resulted in his dismissal in
2017.
[3]
Having considered the application, the respondent in
a letter dated
17 March 2023 pertinently addressed the issue of the
applicant’s previous disciplinary proceedings
and stated that
the applicant shall set out full details thereof and the mere
reference to the proceedings are insufficient for
the purposes of the
admission application. The applicant was thus invited to supplement
his papers accordingly and re-deliver same
to the respondent.
[4]
In a supplementary affidavit dated 24 April 2023 the
applicant deals
in detail with the events that led to his dismissal at the National
Prosecuting Authority, which can be summarised
as follows:
(a)
The applicant undertook a pre-approved official trip with his private
vehicle on 1 May 2017
and whilst enroute he accounted
mechanical problems and had to use another vehicle. The applicant was
later charged with gross
dishonesty relating to the travel claim and
was then subjected to a disciplinary hearing. At the disciplinary
hearing the applicant
sought a postponement as his representative was
unable to attend. The request for a postponement was denied by the
chairperson
and the hearing proceeded whereafter the applicant was
dismissed.
(b)
The applicant followed an internal appeal process wherein the
dismissal was confirmed and later
turned to the CCMA where the appeal
against the dismissal was again unsuccessful.
(c)
In a last attempt the applicant approached the Labour Court under
case number JR2935/19 where
(according to him) he is currently
awaiting a court date.
[5]
During the hearing of the application it was clear that the applicant
has not proceeded with the
Labour Court application, as he is
apparently not financially able to do so.
[6]
On 15 January 2025 the respondent filed a notice of intention to
oppose the application. In opposing
the application the respondent in
essence states that the applicant despite his dismissal in 2017 by
his previous employer failed
to make out a case that he is a fit and
proper person to be so admitted in that he failed when registering
his contract of articles
and later in the founding affidavit of the
application under consideration failed to disclose fully the details
which led to him
being dismissed for gross dishonesty on 18 March
2017.
[7]
It is furthermore evident from the opposing affidavit that the
respondent is of the opinion that
the failure by the applicant to
admit any fault in regards to the dismissal for gross dishonesty and
the fact that the dispute
is still subject to adjudication by the
Labour Court which is now pending for over six years fails to satisfy
the requirement of
showing that he is a fit and proper person to be
so admitted. In essence the respondent argues that due to the
incomplete disclosures
by the applicant and considering the
considerable weight placed on the dishonourable discharge from his
former work ‘as an
officer of this court’, that he is not
a fit and proper person to be admitted as a legal practitioner of
this court.
[8]
In reply, the applicant, in regard to the allegation of
non-disclosure stated that he, at the
time when he registered his
contract of articles did not know that he had to disclose the
previous dismissal and that he had no
malicious intention in that
regard. The applicant reiterated that in his initial founding
affidavit he already revealed the fact
that he was dismissed by the
National Prosecuting Authority following the disciplinary proceedings
and avers that after having
filed the supplementary affidavit which
dealt with the queries of the respondent, he was of the genuine
belief that his exposition
of the details was sufficient. In relation
to the respondent’s assertion that the applicant has failed to
show remorse or
admit guilt the applicant states that he will not
simply do so in order to be admitted as a legal practitioner and that
he holds
firm views on his innocence against the decision by the
disciplinary tribunal.
[9]
The applicant furthermore states that on 13 June 2023 he attached the
Professional Affairs Committee’s
documentation and that as such
he has prior to the hearing of this application completed full
disclosure as required by the respondent.
From the founding affidavit
filed in the Labour Court a clearer picture emerges as to what
exactly transpired that led to the applicant’s
dismissal from
the National Prosecuting Authority.
[10]
It appears that the applicant was required to attend a workshop
arranged by the National Prosecuting Authority,
Bloemfontein and the
trip required him to pre-apply indicating which make of transport he
will use. The applicant, in the requisite
form indicated that he
would use his private vehicle being an Audi 2L to attend to the
training in Bloemfontein. After commencing
the trip using the vehicle
as aforesaid the vehicle encountered technical problems. He had by
that time already travelled approximately
30 km.
[11]
He immediately went back home to exchange the vehicle and collected a
Volkswagen Polo 1.4 L capacity to complete
the trip. He arrived at
Bethlehem at around 07h00. After the training was concluded the
applicant called the Chief Prosecutor’s
office and he
requested them to prepare his Subsistence & Travelling claim form
(S & T form), he went to her office and
signed the claim form and
left the receipt for the toll fees and KFC with her. He signed the
claim form without noting the mistakes
in it and as such the
incorrect engine capacity appeared on the claim form.
[12]
Based on the aforesaid it was the employer’s stance that he
should have received payment that was based
on a 1.4 L engine and not
a 2 L engine and that the loss to his employer amounted to R704.50.
Based on the aforesaid so-called
misrepresentation on engine capacity
the applicant was dismissed as aforesaid.
[13]
In essence, it is thus the case for the applicant that he mistakenly
signed the wrong S & T form without
noticing the difference in
engine capacity of the vehicles and the costs associated therewith as
listed therein. Applicant furthermore
requested his employer at the
time to consider an apology in refunding the money, the R704.50 but
they refused to do so.
Law
[14]
Section 24
of the
Legal Practice Act 28 of 2014
states:
‘
2
The High Court must admit to practice and authorise to be enrolled as
a legal
practitioner, conveyancer or notary or any person who, upon
application, satisfied the court that he or she:
(a)
is duly qualified as set out in
section 26
;
(b)
is a—
(i)
South African citizen; or
(ii)
permanent resident in the Republic.
(c)
is a fit and proper person to be so admitted; and
(d)
has served a copy of the application on the Council, containing the
information as
determined in the rules within the time period
determined in the rules.
[15]
The simple question for this Court is thus whether the applicant has
demonstrated in his application including
the supplementary
documentation eventually filed that he can be regarded as a fit and
proper person to be admitted.
[16]
The enquiry applicable in deciding whether a person is a fit and
proper person to be so admitted is trite
and has been set out as
follows by the Supreme Court of Appeal in
South
African Legal Practice Council v Kgaphola and Another
,
[2]
as follows:
‘
The proper
approach to misconduct complaints against legal practitioners 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 third stages, a court
exercises
discretion.’
[17]
It is common cause that the applicant was dismissed as aforesaid and
it stands undisputed that although full
details of his dismissal
eventually surfaced, the applicant was less than frank in his
founding affidavit. This Court thus only
have to decide whether
considering the totality of the evidence, the applicant is a fit and
proper person to be admitted as a legal
practitioner.
[18]
It is important to note that irrespective of the serious nature of
his dismissal from his previous employer
the applicant, as is evident
hereinbefore, continued in his efforts to review his dismissal as
aforesaid.
[19]
The fact that the applicant was dismissed for gross dishonesty should
be read in conjunction with what actually
happened and the question
arises whether in those circumstances it is enough to hold that a
person has already been in legal practice
as a prosecutor at the time
of the application for fourteen (14) years which on the face of it
appears to be event free and without
incident, would then suddenly,
because of his signing of an inaccurate requisition form, become an
unfit and improper person to
be admitted as a legal practitioner.
This court in
Ex
Parte
Mhlekwa
,
[3]
(
Mhlekwa
)
had to consider whether an applicant who had spent a number of years
incarcerated having been found guilty of the theft of money
from the
Guardians Fund whilst being employed at the Master’s Office and
who maintained her innocence that was ultimately
unsuccessful in
appealing her conviction up to the Constitutional Court remained a
fit and proper person to be admitted as a legal
practitioner.
[20]
The court concluded that irrespective of the prior conviction it
cannot be that an applicant has to admit
guilt in order to show that
he or she is a fit and proper person to be admitted as a legal
practitioner should that person maintain
that he or she was not
involved in any fraudulent scheme.
[21]
Simply put, does a legal practitioner who, on a previous occasion has
been found guilty either by a court
of law or in disciplinary
proceedings but who maintains that they were innocent, have to show
remorse before being able to be considered
for admission as a legal
practitioner. This is a value judgement
[4]
that must made based on the particular facts of each case.
[22]
Whilst respondent submitted that is unclear whether the applicant
admits fault or is only aggrieved with
the procedure followed, it
appears from his supplementary affidavit as well as the Labour Court
application that his attempted
appeals related to both procedurally
and substantively fair process which would encompass the sanction of
dismissal.
[23]
Whilst it cannot be denied that the applicant, in signing the
relevant claim forms, acted in a negligent
and irresponsible manner,
by failing to ensure that the information contained therein, was
correct, his actions cannot be said
to have been deliberately
dishonest. An insistence that applicant admit to have acted with
‘gross dishonesty’ would
in itself amount to a dishonest
admission by the applicant, purely in an attempt to be admitted.
[5]
This Court finds it hard to believe that a legal practitioner would
jeopardise his legal career spanning more than 14 years at
the time
to obtain an unjustified financial reward of R704.50. The applicant
continued in his efforts to clear his name and even
offered to refund
the amount complained of. The error in judgement by the applicant
cannot be said to be so gross and egregious
that it manifests a lack
of integrity, such that it renders him unfit to be admitted as a
legal practitioner.
[24] As
held in
Mhlekwa
,
[6]
citing with approval the passage in
Kwazulu-Natal
Law Society v Singh
:
[7]
‘
Therefore, I am
not satisfied that the respondent is inherently a dishonest person.
She has clearly learnt a hard and painful lesson.
She now fully
understands the extent to which her conduct falls short of the high
standards that are expected of an attorney. The
repetition of the
conduct complained of is, in the circumstances, highly unlikely.’
It is highly unlikely
that applicant would repeat such careless mistake. The evidence does
not suggest that the applicant is inherently
a dishonest person.
Costs
[25]
The applicant did not seek costs in his notice of motion nor in the
heads of argument filed on his behalf.
Respondent sought cost against
the applicant should the application be dismissed. The respondent
acting
custos morum
cannot be faulted in its opposition to the
application and in the circumstances, it would be proper to order
that each party will
be responsible for its own costs.
[26]
In the result the following orders are granted:
1
Nnapa Joseph Khomarie is admitted
and enrolled as a legal
practitioner of this Honourable Court and the Legal Practice Council
is authorized to enter the name of
the applicant on the roll of
attorneys of the honourable court in terms of
s 24
read with s 30 of
the
Legal Practice Act 28 of 2014
.
2
Each party to pay its own costs.
H
E DE LA REY
ACTING
JUDGE OF THE HIGH COURT
I
concur.
C
VAN ZYL
JUDGE
OF THE HIGH COURT
Appearances
For
the applicant:
Adv
RJ Nkhahle
Instructed
by:
Tshepo
Thusi Attorneys Inc
Bloemfontein
For
the respondent:
DS
Qwelane
Instructed
by:
Qwelane
Theron & Van Niekerk
Bloemfontein.
[1]
Section
24(2)
(c)
of
Legal Practice Act 28 of 2014
, provides:
‘
The High Court
must admit to practise and authorise to be enrolled as a legal
practitioner, conveyancer or notary or any person
who, upon
application, satisfies the court that he or she-
(c)
is
a fit and proper person to be so admitted.’
[2]
South
African Legal Practice Council v Kgaphola and Another
[2025]
ZASCA 66
(
Kgaphola
)
para 19.
[3]
Ex
Parte
Mhlekwa
[2022]
ZAFSHC 317
(
Mhlekwa
)
paras 31-36.
[4]
Kgaphola
para
33.
[5]
Mhlekwa
para
33.
[6]
Ibid para 36.
[7]
Kwazulu-Natal
Law Society v Singh
[2011]
ZAKZPHC 12 para 48.