THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 184/2024
In the matter between:
MMATLOU LESLEY MATSI FIRST APPLICANT
MATSI LAW CHAMBERS INC.
ATTORNEYS SECOND APPLICANT
and
THE SOUTH AFRICAN LEGAL PRACTICE
COUNCIL (GAUTENG PROVINCE) RESPONDENT
Neutral citation: Matsi and Another v The South African Legal Practice Council
(Gauteng Province) (184/2023) [2026] ZASCA 12 (06 February 2026)
Coram: PETSE, MBHA and DLODLO AJJA
Heard: 15 September 2025
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal
website, and release to SAFLII. The date and time for hand down is deemed to be
06 February 2026 at 11h00.
2
Summary: Legal Practitioner – Legal Practice Act 28 of 2014 – whether the
immediate suspension of a legal practitioner pending the determination of
application to have his name struck from the roll is imperatively called for in the
context of the peculiar facts of the case – s 17(2)(f) of the Superior Courts Act 10 of
2013 – whether substantial and compelling circumstances exist warranting
reconsideration of decision refusing leave to appeal and, if necessary, variation
thereof – none established – application dismissed.
3
ORDER
On application for reconsideration: (referred to Court by the President in terms of
the proviso to s 17(2)(f) of the Superior Courts Act 10 of 2013):
1 The application referred to the court in terms of s 17(2) (f) of the Superior
Courts Act 10 of 2013 for the reconsideration of the decision made on 20 February
2024 under s 17(2)(b) is dismissed with costs on an attorney and client scale.
2 The operation and execution of the order granted by the Gauteng Division of
the High Court, Pretoria on 30 August 2023 suspending the first applicant from
practising as a legal practitioner with immediate effect shall not be suspended or
stayed pending the decision of any application or appeal that the applicants might
institute in future.
JUDGMENT
Petse AJA (Mbha and Dlodlo AJJA concurring):
Introduction
[1] This is an application referred to the court by the President on 7 June 2024 in
terms of the proviso to s 17(2)(f) of the Superior Courts Act 10 of 2013 (the SC Act),
for the reconsideration of the decision of two judges of this Court who , on
20 February 2024, refused leave to appeal against the order of Davis J , of the
Gauteng Division of the High Court, Pretoria (the high court) . On 20 November
2023 Davis J had himself refused leave to appeal against his order, hence the petition
to this Court.
[2] The first applicant, Mr Mmatlou Lesley Matsi , is an attorney admitted and
enrolled as such, and a member of the South African Legal Practice Council (the
4
LPC) of the Gauteng Province, the respondent in this application. For convenience,
I shall hereinafter refer to the respondent as the LPC. The second applicant is Matsi
Law Chambers Inc. Attorneys. It is essentially the name and style under which the
first applicant practi ses his profession. Thus, it exists simply by virtue of the fact
that the first applicant elected to practise his profession under such name and style.
As can be deduced from its name, the second applicant is more appropriately the
juristic entity through which the practice is conducted.
[3] During August 2023 the LPC instituted proceedings, as a matter of urgency,
by way of a notice of motion comprising Part A and Part B in the high court. In Part
B of its notice of motion the LPC, in the main, sought an order that the name of the
first applicant be struck off the roll of legal practitioners on the grounds that he is no
longer a fit and proper person to remain on the roll of legal practitioners. The LPC
also claimed ancillary relief predicated upon the removal of the first applicant’s
name from the roll.
[4] In Part A of the notice of motion, the LPC sought an order that the first
applicant ‘be suspended from practicing as a legal practitioner on an urgent basis…’
pending the final determination of Part B of its application. The LPC also sought
consequential relief in relation to Part A of its application. 1
1 The following ancillary orders were sought:
‘3. That the First Respondent immediately hand delivers his certificate of enrolment as an attorney to the
Registrar of this Honourable Court;
4. That in the event of the First Respondent failing to comply with the terms of this order detailed in the previous
paragraph within two (2) weeks from date of this order, that the sheriff of the district in which the certificate is, be
authorised and directed to take possession of the certificate and to hand it to the Registrar of this Honourable Court;
5. That the First Respondent be prohibited from handling or operating from his firm’s trust accounts, Matsi,
Mailula Inc Attorneys (also known as Matsi Law Chambers), as detailed in paragraph 6 hereunder;
6. That the Director/Acting Director and or Nomin ee, of the Gauteng Provincial Office of the Applicant, be
appointed as curator bonis (herein referred to as “curator”) to administer and control the trust accounts of the First
Respondent’s firm, Matsi, Mailula Inc Attorneys (also known as Matsi Law Chambers), including accounts relating
to insolvent and deceased estates and any deceased estate and any estate under curatorship connected with the First
Respondent’s practice as attorney and including so, the separate banking account opened and kept by the First
Respondent at a bank in the Republic of South Africa in terms of section 86(1) of the Legal Practice Act (LPA) and/or
any separate savings or interest -bearing accounts as contemplated by section 86(3) and section 86(4) of the LPA, in
which monies from such trust bank accounts having been invested by virtue of the provisions of the said sub-sections
5
in which monies in any manner have been deposited or credited (the said accounts being hereafter referred to as “the
trust accounts”), with the following powers and duties:
6.1 immediately to take possession of the First Respondent’s accounting records, records, files and documents
as referred to in paragraph 7 and subject to the approval of the Board of Control of the Legal Practitioner’s Fidelity
Fund (hereinafter referred to as “the Fund”) to sign all forms and generally to operate upon the trust account(s), but
only to such extent and for such purpose as
6.2 subject to the approval and control of the Board of Control of the Fund and where monies had been paid
incorrectly and unlawfully from the undermentioned trust accounts, to recover and receive and, if necessary in the
interests of persons having lawful cl aims upon the trust account(s) and/or against the First Respondent in respect of
monies held, received and/or invested by the First Respondent in terms of Section 86(3) and section 86(4) of the LPA
(hereinafter referred to as “the trust monies”), to take any legal proceedings which may be necessary for the recovery
of money which may be due to such persons in respect of incomplete transactions, if any, in which the First Respondent
was and may still have been concerned and to receive such monies and to pay the same to the credit of the trust
account(s);
6.3 to ascertain from the First Respondent’s accounting records the names of all persons on whose account the
First Respondent appears to hold or have received trust monies (hereinafter referred to as “trust creditors”) and to call
upon the First Respondent t o furnish him, within 30 (thirty) days of the date of service of this order or such further
period as he may agree to in writing, with the names, addresses and amounts due to all trust creditors;
6.4 to call upon such trust creditors to furnish such proof, information and/or affidavits as he may require to
enable him, acting in consultation with, and subject to the requirements of, the Board of Control of the Fund, to
determine whether any such trust creditor has a claim in respect of monies in the trust account(s) of the First
Respondent and, if so, the amount of such claim;
6.5 to admit or reject, in whole or in part, subject to the approval of the Board of Control of the Fund, the claims
of any such trust creditor or creditors, without prejudice to such trust creditor’s or creditors’ rights of access to the
civil courts;
6.6 having determined the amounts which he considered are lawfully due to trust creditors, to pay such claims in
full but subject always to the approval of the Board of Control of the Fund;
6.7 In the event of there being surplus in the trust account(s) of the First Respondent after payment of the admitted
claims of all trust creditors in full, to utilise such surplus to settle or reduce (as the case may be), firstly any claim of
the Fund in terms of section 86(3) of the LPA in respect of any interest therein referred to and, secondly, without
prejudice to the rights of the trust creditors of the First Respondent, the costs, fees and expenses referred to in paragraph
13 of this application, or such portion thereof as has not already been separately paid by the First Respondent to
Applicant, and, if there is any balance left, subject to the approval of the Board of Control of the Fund, to the
Respondent, if he is solvent, or, if the First Respondent is insolvent, to the trustee(s) of the First Respondent’s insolvent
estate;
6.8 In the event of there being insufficient trust monies in the trust bank account(s) of the First Respondent, in
accordance with the available documentation and information, to pay in full the claims of trust creditors who have
lodged claims for repayment and whose claims have been approved, to distribute the credit balance(s) which may be
available in the trust bank account(s) amongst the trust creditors alternatively to pay the balance to the Legal
Practitioner’s Fidelity Fund;
6.9 subject to the approval of the chairman of the Board of Control of the Fund , to appoint nominees or
representatives and/or consult with and/or engage the services of attorneys, counsel, accountants and/or any other
persons, where considered necessary to assist him in carrying out his duties as curator; and
6.10 to render from time to time, as curator, returns to the Board of Control of the Fund showing how the trust
account(s) of the First Respondent has/have been dealt with, until such time as the Board identifies him that he may
regard his duties as curator as terminated.
7. That the First Respondent immediately deliver s his accounting records, records, files and documents
containing particulars and information relating to:
7.1 any monies received, held or paid by the First Respondent for or on account of any person while practising
as an attorney;
7.2 any monies invested by the First Respondent in terms of section 86(3) and section 86(4) of the LPA;
7.3 any interest on monies so invested which was paid over or credited to the First Respondent;
7.4 any estate of a deceased person or an insolvent estate or an estate under curatorship administered by the First
Respondent, whether as an executor or trustee or curator or on behalf of the executor, trustee or curator;
7.5 any insolvent estate administered by the First Respondent as trustee or on behalf of the trustee in terms of the
Insolvency Act No 24 of 1936;
7.6 any trust administered by the First Respondent as trustee or on behalf of the trustee in terms of the Trust
Property Control Act, No 57 of 1988;
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[5] The application by the LPC was brought in terms of s 43 of the Legal Practice
Act (the Act).2 Section 43 of the Act provides as follows:
‘Despite the provisions of this Chapter, if upon considering a complaint, a disciplinary body is
satisfied that a legal practitioner has misappropriated trust monies or is guilty of other serious
misconduct, it must inform the Council thereof with the view to the Council instituting urgent legal
7.7 any company liquidated in terms of the Companies Act, No 61 of 1973, administered by the First Respondent
as or on behalf of the liquidator;
7.8 any close corporation liquidated in terms of the Close Corporation Act, 69 of 1984, administered by the First
Respondent as or on behalf of the liquidator; and
7.9 the First Respondent’s practice as an attorney of this Honourable Court, to the curator appointed in terms of
paragraph 6 hereof, provided that, as far as such accounting records, files and documents are concerned, the First
Respondent shall be entitled t o have reasonable access to them but always subject to the supervision of such curator
or his nominee.
8. That should the First Respondent fail to comply with the provisions of the preceding paragraph of this order
on service thereof upon him or after a return by the person entrusted with the service thereof that he has been unable
to effect service thereof on the First Respondent (as the case may be) the sheriff of the district in which such accounting
records, records, files and documents are, be empowered and directed to search for a d to take position thereof
wherever they may be and to deliver them to such curator;
9. That the First Respondent be and is hereby removed from office as -
9.1 executor of any estate of which the First Respondent has been appointed in terms of section 54(1)(a)(v) of
the Administration of Estates Act, No 66 of 1965 or the estate of any other person referred to in section 72(1);
9.2 curator or guardian of any minor or other person’s property in terms of section 72(1) read with section
54(1)(a)(v) and section 85 of the Administration of Estates Act, No 66 of 1965;
9.3 trustee of any insolvent estate in terms of section 59 of the Insolvency Act, No 24 of 1936;
9.4 liquidator of any company in terms of section 379(2) read with 379(e) of the Companies Act, No 61 of 1973;
9.5 trustee of any trust in terms of Section 20(1) of the Trust Property Control Act, No 57 of 1988;
9.6 liquidator of any close corporation appointed in terms of Section 74 of the Close Corporation Act, No 69 of
1984;
10. That the curator shall be entitled to:
10.1 hand over to the persons entitled thereto all such records, files and documents provided that a satisfactory
written undertaking has been received from such persons to pay any amount, either determined on taxation or by
agreement, in respect of fees and disbursements due to the firm;
10.2 require from the persons referred to in paragraph 10.1 to provide any such documentation or information
which he may consider relevant in respect of a claim or possible or anticipated claim, against him and/or the First
Respondent and/or the First Respondent’s clients and/or the Fund in respect of money and/or other property entrusted
to the First Respondent provided that any person entitled thereto shall be granted reasonable access thereto and shall
be permitted to make copies thereof;
10.3 publish this order or an abridged version thereof in any newspaper he considered appropriate;
10.4 wind-up the First Respondent’s practice;
11. That, if there are any trust funds available, the First Respondent shall within 6 (six) months after having been
requested to do so by the curator, or within such longer period as the curator may agree to in writing, shall satisfy the
curator, by means of the submission of taxed bills of costs or otherwise, of the amount of the fees and disbursements
due to him (First Respondent) in respect of his former practice, and should he fail to do so, he shall not be entitled to
recover such fees and disbursements from the curator without prejudice, however, to such rights (if any) as he may
have against the trust creditor(s) concerned for payment or recovery thereof;
12. That a certificate issued by a director of the Legal Practitioner’s Fidelity Fund shall constitute prima facie
proof of the curator’s costs and that the Registrar be authorized to issue a writ of execution on the strength of such
certificate in order to collect the curator’s costs
13. That the costs of this application be paid by the First Respondent on an attorney and client scale.’
2 Section 43 of the Legal Practice Act 28 of 2014 (the Act).
7
proceedings in the High Court to suspend the legal practitioner from practice and to obtain
alternative interim relief.’
The LPC is established in terms of s 4 of the Act. Section 4 reads:
‘The South African Legal Practice Council is hereby established as a body corporate with full legal
capacity, and exercises jurisdiction over all legal practitioners and candidate legal practitioners as
contemplated in this Act.’
[6] The objects of the LPC are provided for in s 5. In relevant part , the section
reads:
‘(a) …
(b) …
(c) promote and protect the public interest;
(d) regulate all legal practitioners and all candidate legal practitioners;
(e) …
(f) enhance and maintain the integrity and status of the legal profession;
(g) determine, enhance and maintain appropriate standards of professional practice and
ethical conduct of all legal practitioners and all candidate legal practitioners;
…
(l) give effect to the provisions of this Act in order to achieve the purpose of this Act, as set
out in section 3.’
[7] Section 84 of the Act bears mentioning. In relevant part, it provides as
follows:
‘(1) Every attorney or any advocate referred to in section 34(2)(b), other than a legal practitioner
in the full -time employ of the South African Human Rights Commission or the State as a state
attorney or state advocate and who practises or is deemed to practise—
(a) for his or her own account either alone or in partnership; or
(b) as a director of a practice which is a juristic entity, must be in possession of a Fidelity Fund
certificate.
(2) No legal practitioner referred to in subsection (1) or person employed or supervised by that
legal practitioner may receive or hold funds or property belonging to any person unless the legal
practitioner concerned is in possession of a Fidelity Fund certificate.
8
(3) The provisions of subsections (1) and (2) apply to a deposit taken on account of fees or
disbursements in respect of legal services to be rendered.
(4) A Fidelity Fund certificate must indicate that the legal practitioner concerned is obliged to
practise subject to the provisions of this Act, and the fact that such a legal practitioner holds such
a certificate must be endorsed against his or her enrolment by the Council.
(5) A legal practitioner referred to in subsection (1) who—
(a) transfers from one practice to another; or
(b) ceases to practise, must give notice of this fact to the Council and comply with the Council’s
relevant requirements in relation to the closure of that legal practitioner’s trust account and in the
case of paragraph (b) return his or her certificate to the Council.
(6) The Council may withdraw a Fidelity Fund certificate and, where necessary, obtain an interdict
against the legal practitioner concerned if he or she fails to comply with the provisions of this Act
or in any way acts unlawfully or unethically.
(7) The provisions of this section do not apply to a legal practitioner who practises in the full time
employ of Legal Aid South Africa on a permanent basis.
(8) An advocate, other than an advocate referred to in section 34(2)(b), may not receive or hold
money or property belonging to any person in the course of that advocate’s practice or in respect
of any instruction issued to the advocate by an attorney or a member of the public.
(9) No legal practitioner in the full-time employ of the South African Human Rights Commission
or the State as a state attorney, state advocate, state law adviser or in any other professional
capacity may receive or keep money or property belonging to any person, except during the course
of employment of such legal practitioner with the State or the South African Human Rights
Commission and in such case only on behalf of the South African Human Rights Commission or
the State and for no other purpose.’
the State and for no other purpose.’
[8] Lastly, a reference to s 86 of the Act, which deals with trust accounts, must
also be made. It reads:
‘(1) Every legal practitioner referred to in section 84(1) must operate a trust account.
(2) Every trust account practice must keep a trust account at a bank with which the Fund has made
an arrangement as provided for in section 63(1)(g) and must deposit therein, as soon as possible
after receipt thereof, money held by such practice on behalf of any person.
9
(3) A trust account practice may, of its own accord, invest in a separate trust savings account or
other interest-bearing account any money which is not immediately required for any particular
purpose.
(4) A trust account practice may, on the instructions of any person, open a separate trust savings
account or other interest-bearing account for the purpose of investing therein any money deposited
in the trust account of that practice, on behalf of such p erson over which the practice exercises
exclusive control as trustee, agent or stakeholder or in any other fiduciary capacity.
(5) Interest accrued on money deposited in terms of this section must, in the case of money
deposited in terms of—
(a) subsections (2) and (3), be paid over to the Fund and vests in the Fund; and
(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.
(6) A legal practitioner referred to in section 84(1) may not deposit money in terms of subsection
(2), nor invest money in terms of subsections (3) and (4) in accounts held at a bank which is not a
party to an arrangement as provided for in section 63(1)( g), unless prior written consent of the
Fund has been obtained.
(7) A legal practitioner referred to in section 84(1) must comply with the terms of an arrangement
concluded between a bank and the Fund as provided for in section 63(1)(g).’
[9] What precipitated the institution of the current legal proceedings against the
applicants were several complaints lodged by certain of their clients with the LPC.
The gravamen of the complaints was that the first applicant failed or neglected to
account to them in respect of moneys paid on diverse times by the Road Accident
Fund (the RAF) to compensate them as contemplated in s 17 of the Road Accident
Fund Act.3 In addition, it transpired that the first applicant practised without being
Fund Act.3 In addition, it transpired that the first applicant practised without being
in possession of a valid Fidelity Fund certificate as required by s 84(1) of the Act.
[10] Briefly stated, the case against the first applicant was, inter alia, that:
3 Road Accident Fund Act 56 of 1996.
10
(a) he failed to report to the LPC that there were recurring trust deficits in his
bookkeeping;
(b) he failed to report such trust deficits;
(c) he effected irregular transfers from his trust account to his business banking
account;
(d) he refused to allow inspection of his practice accounting records;
(e) he submitted manipulated audit reports for the 2021 and 2022 financial years
to conceal the trust deficit that existed; and
(f) he misrepresented the true state of affairs concerning his accounting records
and thereby placed his trust creditors and the Legal Practitioner’s Fidelity Fund at
grave risks.
[11] Because of the wide -ranging allegations made in the LPC’s founding
affidavit deposed to by its chairperson, Ms Pulen g Magdeline Keetse, and in order
to promote a better appreciation of the contextual setting it is necessary to quote
fairly extensively from the founding affidavit in order to gain a better insight into
the gravamen of its case against the applicants.
[12] In the LPC’s founding affidavit, Ms Keetse, inter alia, asserted that:
‘11.1 During Nyali’s4 discussion with the First Respondent, the First Respondent advised that
the maintenance of the firm’s accounting records is outsourced to Mcmillan Financial
Services.
11.2 According to the First Respondent, the accounting records are updated on a monthly
basis.
11.3 Nyali was unable to validate the First Respondent’s statements in the paragraph above
since he was not furnished with the firm’s accounting records for inspection.
4 Mr Philasande Nyali (Mr Nyali) was the LPC’s internal auditor who conducted the investigation into the applicants’
accounting records at the behest of the LPC.
11
11.4 Nyali concluded that the First Respondent contravened Rule 54.6 of the LPC Rules in
that he failed to maintain accounting records as required.
11.5 Rule 54.6 of the LCP Rules provides:
Accounting Requirements - General
A firm shall keep in an official language of the Republic such accounting records, which record
both business account transactions and trust account transactions, as are necessary to enable the
firm to satisfy its obligations in terms of the Act, these rules and any other law with respect to the
preparation of financial statements that present fairly and in accordance with an acceptable
financial reporting framework in South Africa the state of affairs and business of the firm and to
explain the transactions and financial position of the firm including, without derogation from the
generality of this rule:
54.6.1 records showing all assets and liabilities as required in terms of sections 87 of the Act;
54.6.2 records containing entries from day to day of all monies received and paid by it on its
own account, as required by sections 87(1) and 87(3) of the Act;
54.6.3 records containing particulars and information of:
54.6.3.1 all monies received, held and paid by it for and on account of any person;
54.6.3.2 all monies invested by it in terms of section 86(3) or section 86(4) of the Act;
54.6.3.3 any interest referred to in section 86(5) of the Act which is paid over or
credited to it;
54.6.3.4 any interest credited to or in respect of any separate trust savings.
…
11.7 The account had a credit balance in the amount of R292.86 as at 31 August 2022.
A copy of the trust bank account statement dated 31 August 2022 is attached to the
report marked A2a as Schedule D.
Receipts
11.8 According to the First Respondent, the firm does not hold trust investments.
Payments
11.9 The First Respondent advised Nyali that payments from the trust banking account are
effected via electronic funds transfer. The First Respondent is the only person that
effected via electronic funds transfer. The First Respondent is the only person that
authorises payments from the trust account.
11.10 The First Respondent further advised that clients are requested to provide proof of
banking details before a payment can be made.
Fees journal and transfer procedure
12
11.11 The First Respondent stated that fee transfers are done at various stages of the month.
11.12 The First Respondent also stated that fees are generally transferred on a matter by matter
basis and occasionally in bulk.
11.13 Nyali was unable to validate the First Respondent’s statements regarding the fee
transfers due to the First Respondent’s failure to provide the requested accounting
records.
…
13.6 According to Nyali, it appears that the First Respondent’s failure to effect payment to
the complainant was due to the fact that the funds had been utilised and were no longer
available in the trust account. The First Respondent’s assertion that the funds are still
available in the trust account is untrue and misleading.
13.7 The First Respondent thus contravened Rule 54.14.14.2 of the LPC Rules in that he
made transfers from the trust account to the business account in excess of what was due
to the firm. Rule 54.14.14.2 provides:
as transfers to the firm's business banking account, provided that such transfers shall be
made only in respect of money due to the firm; and provided that no transfer from its
trust banking account to its business banking account is made in respect of any
disbursement (including counsel's fees) or fees of the firm unless:
54.1.14.2.1 the disbursements have actually been made and debited by the firm; or
54.14.14.2.2 a contractual obligation has arisen on the part of the firm to pay the
disbursement; or
54.14.14.2.3 fees and disbursement have been correctly debited in its accounting records.
13.8 He further contravened section 3.1 of the Code of Conduct in that he failed to maintain
the highest standard of honesty and integrity by misappropriating the client’s funds and
making false assertions about the availability of such funds.
…
20.1 During the inspection of the trust bank statements, Nyali noted that the First Respondent
received a total amount of R12 452 172.40 from RAF on behalf of various clients. The
received a total amount of R12 452 172.40 from RAF on behalf of various clients. The
trust bank statements revealed that between 08 July 2022 and 31 January 2023, the First
Respondent transferred an amount of R4 831 759.00 to the firm’s business account.
20.2 According to Nyali, this amount appears excessive, and he suspects that it is higher than
what was due to the firm. However due to the First Respondent’s failure to furnish his
accounting records he was unable to validate his suspicions.
13
…
21.2 The total trust funds available as at 28 February 2021 align with the amount reflected in
the trust bank statements. Nyali was unable to verify the total trust creditors amount as a
result of the First respondent’s failure to provide him with the firm’s trust accounting
records.
21.3 However, according to Nyali, it is highly unlikely that the total creditors would equal an
amount R40, 559.61. Based on complaints discussed in paragraphs 12 -19 above, the
First Respondent owed huge amounts of monies to the complainants.
21.4 For example, the First Respondent only made a payment of R400, 000.00 to Ms Morifi
in August 2022 (see paragraph 14 above). This client was a trust creditor as at 28
February 2021. This is a clear indication that the trust creditors amount as at 28 February
2021 was manipulated to conceal a huge trust deficit that existed.
21.5 Again, Nyali notes that as at 28 February 2022, the trust bank account balance was only
R142.51. This aligns with the firm’s audit report. However, the audit report was
manipulated to show a total trust creditor’s amount of R142.51. Considering the
complaints discussed above, it is clear that the First Respondent owe d vast sums of
monies to clients as at 28 February 2022.
…
21.8 The First Respondent thus contravened Rule 54.14.8 of the LPC Rules in that he failed
to ensure that the total amount of money in his trust banking account at any date is not
less than the total amount of trust creditors. Rule 54.14.8 provides:
A firm shall ensure that the total amount of money in its trust banking account, trust
investment account and trust cash at any date shall not be less than the total amount of
the credit balances of the trust creditors shown in its accounting records.
…
22.1 Based on the instructions received form the Legal Practice Council: Gauteng Provincial
Office and the findings outlined in the report, Nyali concluded that the First Respondent
Office and the findings outlined in the report, Nyali concluded that the First Respondent
did not comply with the following provisions of the LPA; the LPC Rules and the Code
of Conduct:
22.1.1 Section 37(2)(a) and Section 87(5) of the LPA in that he failed to produce the
requested trust accounting records for inspection as outlined in paragraph 8.23 above:
14
22.1.2 Rule 54.14.8 of the LPC Rules in that he failed to ensure that the amount of
money in his trust banking account at any date is not less than the amount of trust creditors
as stated in paragraph 21.8 above;
22.1.3 Rule 54.14.10 of the LPC Rules in that he failed to immediately report in
writing to the Council that the total amount of money in his trust bank account
was less than the total amount of trust creditors as sated in paragraph 21.9
above;
…
22.1.6 Rule 54.14.14.2 of the LPC Rules in that he made transfers from the trust
account to the business account in excess of what was due the firm as stated in
paragraph 13.7 above;
…
24.1 The First Respondent contravened numerous provisions of the LPA, the Code of
Conduct, the LPC Rules, and the Rules for the Attorneys’ Profession. It is respectfully
submitted that these offences are serious as it is a fundamental duty of a legal practitioner
to ensure that trust monies held on behalf of a client are kept safe.
24.2 It is respectfully submitted that the First Respondent’s contravention of the provisions of
the LPA, the code of Conduct, the LPC Rules, and the Rules for the Attorneys’
Profession constitutes unprofessional or dishonourable or unworthy conduct on the part
of the First Respondent as provided for in the Code of Conduct, the LPC Rules and the
Rules for the Attorneys’ Profession.
24.3 I humbly submit that the conduct of the First Respondent amounts to such a material
deviation from the standards of professional conduct that he is not a fit and proper
person to continue to practise as a legal practitioner. Accordingly, it is my view that the
First Respondent’s name be removed from the roll of legal practitioners, alternatively
that he be suspended from practice as a legal practitioner, pending the removal of his
name form the roll of legal practitioners.’
[13] The applicants opposed the LPC’s application. They also delivered a counter-
[13] The applicants opposed the LPC’s application. They also delivered a counter-
application in which they sought certain orders, namely: (a) reviewing and setting
aside the LPC’s decision taken on 25 May 2023 to institute the legal proceedings
referred to in paragraph 3 above of this judgment on the grounds that they were not
15
afforded the opportunity to be heard before the decision to embark on litigation was
taken; (b) reviewing and setting aside the internal investigation report prepared at
the behest of the LPC by its internal auditor, risk and compliance, Mr Nyali, into the
affairs of the applicants which established that there were various instances of,
amongst other things, misappropriation of trust funds; failure to keep proper trust
accounting records; and recurring trust deficits on the grounds that ‘they were not
given an opportunity to answer to the investigation report’ upon its completion in
April 2023; and (c) the revie w and setting aside of the LPC’s refusal to issue a
Fidelity Fund certificate to the first applicant to enable him to lawfully practise his
profession.
[14] In their answering affidavit deposed to by the first applicant, the applicants
sought to avoid taking responsibility for what obtained in their practice and, instead,
asserted that Mr Mailula who was at one-time also a director of the practice until
2019 ‘was the head of finance’ in the practice. And that when he resigned from the
practice, he filched certain files, rendering it impossible for them to provide the LPC
with the required accounting records. The first applicant also contested the
entitlement of the LPC to some of the documents it sought, describing the LPC’s
request to allow its internal auditor access to its business account records as ‘out-of-
the-ordinary or ultra vires.’5
[15] Insofar as the complaints lodged with the LPC against the applicants are
concerned, the first applicant, inter alia, averred in his answering affidavit ,
somewhat dismissively, that:
‘The applicant’s report and application is premised upon 8 (eight) matters in respect of which it is
suspected that clients did not receive their RAF compensation. I can confirm that payments were
made in all of the matters. The said matters are as follows:
made in all of the matters. The said matters are as follows:
5 The free translation of the expression ‘ultra vires’ means that the LPC had exceeded its statutory powers.
16
a. Msiza v RAF
i. Unfortunately, Ms Mzisa passed away just before payment could be made to her. An
executor was appointed and she was assisted by our colleagues, Trip Manaswe Attorneys.
I can confirm here under oath that payment to client as regards the first capital (relating to
the first court order…) was made to the abovementioned attorneys.
ii. The only outstanding amount is what has not been paid out by the RAF (see second court
order... There is a rescission of judgment application... Trip Manaswe Attorneys requested
us (on behalf of clients) that we can continue to fight the RAF as we know the matter
better.
iii. The deceased is survived by a traditional spouse (Mr Phiri) and 4 children, one adult and
3 minors.
b. Morifi vs RAF
i. I confirm that payment of the capital was made to client, hence the affidavit was filed. A
complaint of this client was lodged with the LPC by my former co -director, Mr Mailula.
He accessed the information illegally and used that anyway. Mr Mailula used lies and
slander to woo clients to him or to get them to sign mandate transfer documents. The
Morifi’s noted that something was fishy. They refused to signed the documents, came
back to the firm and were paid. They made an affidavit confirming this and withdrawing
the complaint.
ii. If there is a further investigation that is necessary in this regard, a process must ensue. In
its preliminary report, the LPC confirms that payments were made to this client.
Therefore urgency does not arise but is rather imagined or putative. Real justice was
served.
17
c. Mboyisa vs RAF
i. I confirm that payment of the capital was made to client. In its preliminary report, the
LPC confirms that payments were made to this client. Therefore urgency does not arise.
Real justice was served. Urgency has to be real.
d. Sethokga vs RAF
i. I confirm that payment of the capital was made to Mohlapi Attorneys as per client’s
instruction. Therefore urgency does not arise. Real justice was served. Urgency has to be
real.
e. Mautla vs RAF
i. I confirm that payment of the capital was made to Thanyane Attorneys as per client’s
instruction and this complaint matter should be regarded as closed. Therefore urgency
does not arise. Real justice was served. Urgency has to be real.
f. Mogolola vs RAF
i. Payment of the capital was made to client in the sum of R410 455,00 and this matter
should be regarded as closed. Client received payment even though party and party costs
have not yet been paid by the RAF. In fact the RAF indicated its intention to review same.
The law firm is somewhat prejudiced as it runs the risk of not recovering its file costs and
fees in full. Real justice for client is served. Therefore urgency does not arise but is rather
imagined or putative as it is based on old incomplete factual narratives. Urgency has to be
real.
g. Mthimunye vs RAF
i. Payment of the capital was made to client as confirmed in the very report of the LPC and
this matter should be regarded as closed. Therefore urgency does not arise but is rather
18
imagined or putative as it is based on incomplete factual narratives. Urgency ought to be
real.
h. Mogorosi vs RAF
ii. Payment of the capital was made to 2 (two) different law firms, namely, Matsi Law
Chambers Inc – R300 000,00, and Lesiba Mailula Attorneys Inc – R927 378,50 – ...’
[16] I pause here to observe that what is curious about the first applicant’s
assertions in the preceding paragraph is that he chose to couch his answers in
extremely vague terms and provided no details of: (a) the respective dates on which
the funds for each one of these claimants were received from the RAF; (b) the
amount paid by the RAF for the benefit of each client; (c) how much was paid to
each client by the practice and the date (s) of the respective payments; and (d) how
long after receipt of the funds in each instance from the RAF were the claimants
caused to wait for an acc ounting from him. Instead, the first applicant contented
himself with blithely stating that ‘payment of the capital was made’ to the client or
different firms of attorneys and that the ‘complaint…should be regarded as closed.’
The applicants elected to downplay the gravity of their infractions in the face of
damning and detailed allegations against them.
[17] Elsewhere in his affidavit, the first applicant accepted that most ‘of the
complaints by clients were warranted.’ And yet in the same breath he sought to
excuse his dishonourable conduct by contending that the complaints had ‘their
common genesis, [ie] delays that not only emanated from the 2 nd [applicant’s]
internal process, but a confluence of factors such as the crippling effect of the Covid-
19 lockdown.’6 However, neither the ‘internal processes’ nor the ‘factors’ referred
to here were explained for the court and the LPC to fully appreciate precisely what
6 See vol 2 at 458 lines 1-6.
19
was sought to be conveyed . As this Court rightly observed in Wightman t/a J W
Construction v Headfour (Pty) Ltd and Another7 ‘…failure to deal issuably with the
factual averments is unjustifiable on any rational basis.’ It therefore goes without
saying that a litigant who does not sufficiently engage with the facts alleged by the
adversary and provide countervailing evidence to the averments in the founding
affidavit that are not true or correct should not be surprised if the court adopts a
robust approach and reject the opposing averments as either far -fetched or clearly
untenable, and instead accept the applicant’s factual averments as inherently
credible.8
Discussion
[18] It is convenient first to deal with the contentions of the applicants in their
counter-application. This approach is adopted because most of what is asserted by
the applicants stems from their misconception about the role of a statutory body such
as the LPC and the nature of the proceedings instituted against them. It is trite that
applications for the suspension of a legal practitioner pending the outcome of a
striking-off application are of a disciplinary nature. On this score , one can do no
better than make reference to certain passages in Solomon v Law Society of the Cape
of Good Hope.9 There, Wessels CJ explained the role of a body such as the LPC in
matters of this nature and said:
‘The Law Society itself has no power to deal with a delinquent attorney. It can only bring to the
notice of the Court such facts as it possesses with regard to the unprofessional conduct of attorneys
and ask the Court to deal with them by suspending them or striking them off the roll, or in such
other way as the Court thinks fit. The Society institutes no action against the attorney. It merely
cites him to appear before the Court and to hear its complaint against his conduct, as it is authorised
7 Wightman t/a J W Construction v Headfour (Pty) Ltd and Another (66/2007) [2008] ZASCA 6; [2008] 2 All SA 512
(SCA); 2008 (3) SA 371 (SCA) para 19.
8 Compare: Plascon-Evans Paints (TVL) Ltd. v Van Riebeck Paints (Pty) Ltd. [1984] ZASCA 51; [1984] 2 All SA 366
(A); 1984 (3) SA 623; 1984 (3) SA 620 at 634E-635C and the cases therein cited.
9 Solomon v Law Society of the Cape of Good Hope 1934 AD 401 (Solomon).
20
to do by the Act. In Gabriel ’s case the proceedings were called quasi-criminal. It is difficult to
place this kind of application in a particular legal docket. The proceedings are statutory and sui
generis, and are no more than a request to the Court by the custos morum of the profession to use
its disciplinary powers over an officer of the Court who has misconducted himself. That is, and
what is not, a civil suit or action was fully considered by this Court in the case of Collett v Priest
(1931 AD 290). DE VILLIERS, C.J., at p. 300 said: “But the words ‘suit or action’ are not confined
to proceedings originating in a summons; even proceedings on petition are included in them
provided in such proceedings one party sues another for or claims something from another party.’
Now in these proceedings the Law Society claims nothing for itself from the applicant. It merely
brings the attorney before the Court by virtue of a statutory right, informs the Court what the
attorney has done and asks the Court to exercise its disciplina ry powers over him. It asks nothing
from the attorney. It does not ask id quod sibi debetur. The fact that it asks the Court to strike the
attorney off the roll or suspend him is not a request for id quod sibi debetur because he owes
nothing to the Society . Before the Cape Law Society received statutory recognition, the Court
mero motu dealt with the unprofessional conduct of attorneys. In practice the Attorney -General
was asked to lay the facts before the Court (In re Cairncross, 1877, Buch. 122). In 1883 the Cape
Law Society was established by statute, and it became the body which laid before the Court the
facts concerning the unprofessional conduct of an attorney. The Law Society protects the interests
of the public in its dealings with attorneys. It does not institute any action or civil suit against the
attorney. It merely submits to the Court facts which it contends constitutes unprofessional conduct
and then leaves the Court to determine how it will deal with this officer.’10
[19] The learned Chief Justice concluded:
‘Each case will depend on its own circumstances, and no general rule can be laid down which the
Courts must follow. The whole enquiry is of a disciplinary nature, and how the Court will conduct
the enquiry will depend on the circumstances of the case.’11
[20] In similar vein the court in General Council of the Bar v Matthys said the
following:12
10 Ibid at 408-409.
11 Ibid at 412.
12 General Council of the Bar v Matthys 2002 (5) SA1 (E).
21
‘The proceedings are not ordinary civil proceedings, but are sui generis in nature: they are
proceedings of a disciplinary nature, of the Court itself, not those of the parties; the Court exercises
its inherent right to control and discipline the practitioners who practise within its jurisdiction; the
applicant, in bringing the application, acts pursuant to its duty as custos morum of the profession;
in the interests of the Court, the public at large and the profession, its role is to bring evidence of
a practitioner’s misconduct before the Court, for the latter to exercise its disciplinary powers; the
proceedings are not subject to all the strict rules of the ordinary adversarial process.’13
[21] Some nineteen years later, this abiding principle was reiterated by this Court
in Van der Berg v General Council of the Bar of South Africa 14 where Nugent JA
said the following of the role of a litigant such as the LPC in this case:
‘The applicant’s role in bringing such proceedings is not that of an ordinary adversarial litigant but
is rather to bring evidence of a practitioner’s misconduct to the attention of the court, in the
interests of the court, the profession and the public at large, to enable a court to exercise its
disciplinary powers.’15
[22] Accordingly, the applicants have no tenable basis to contend that the first
applicant should have been invited to the meeting where the decision to institute
legal proceedings for his immediate suspension from practice pending the outcome
of the striking-off application was taken. What the LPC did was, on the authority of
Solomon, simply to take a decision to report the first applicant’s infractions to the
court by virtue of its statutory duty and thereafter leave it to the court to decide
whether a case has been made out against the legal practitioner concerned
warranting, as in this instance, the first applicant’s immediate suspension.
[23] The same reasoning applies with equal force to the applicants’ review relating
[23] The same reasoning applies with equal force to the applicants’ review relating
to the report compiled by the LPC’s internal auditor, Mr Nyali. The applicants were
13 Ibid para 4.
14 Van der Berg v General Council of the Bar of South Africa [2007] ZASCA 16; [2007] SCA 16 (RSA); [2007] 2 All
SA 499 (SCA).
15 Ibid para 2.
22
afforded the opportunity to present their version before the high court to counter the
LPC’s assertions. And, having regard to the content of Mr Nyali’s report and the
serious nature and extent of the transgressions canvassed in the report, read with the
averments in the LPC’s founding affidavit , it is hardly surprising that the LPC
refused to issue the first applicant with a Fidelity Fund certificate required in terms
of s 84(1) of the Act without which he was not permitted to practise as an attorney.
[24] Significantly, s 84(2) of the Act provides, amongst others, that no legal
practitioner practising for his or her own account either alone or in partnership or as
a director of a practice which is a juristic person may receive or hold funds or
property belonging to any person unless the legal practitioner concerned is in
possession of a Fidelity Fund certificate. To qualify for the issuance by the LPC of
a Fidelity Fund certificate a practitioner is required to submit an unqualified audit
report which, inter alia, attest s to the fact that the trust accounting records of the
practice comply with the relevant LPC regulatory framework and statutory
prescripts.
Litigation history
High Court
[25] As already indicated, the litigation commenced by way of a notice of motion
on urgency basis, seeking principally an order, inter alia, suspending the first
applicant from practice. It was alleged that the first applicant failed to comply with
some of the LPC’s crucial Rules and prescripts of the Act concerned with the
keeping of accounting records pertaining to the practice’s trust account. This was a
sequel to the investigation into the applicants’ affairs conducted by the LPC’s
internal auditor, which was precipitated by complaints lodged against the applicants.
The most lethal complaints that demonstrated that the applicants had over time
23
abused their trust account, allowing the trust account to be in deficit in breach of
Rule 54.14.10 of the LPC’s Rules, were from certain of their clients.
[26] In paragraph 16.14 of his report, the internal auditor had the following to say:
‘During the inspection it was noted that the legal practitioner submitted manipulated audit
reports/attorney’s annual statements on trust account for the financial yea rs 2021 and 2022. It is
clear that the audit reports were manipulated to conceal a huge deficit that existed at reporting
dates...
Due to the practitioner’s failure to provide me with the requested information I was unable to
estimate the actual trust deficit. However based on a high number of complaints lodged against the
legal practitioner and my findings as detailed in paragraph 5-14 above it is clear that a significant
deficit exists.’
[27] The high court quoted extensively from the auditor’s report. In particular, it
referred to paragraph 16 of the report and said:
‘I quote his conclusion in full, to place the matter in context:
16.1 The Legal Practice Council initially instructed Ms Puseletso Nhlopo Hlogwana to attend
to the inspection of the firm’s accounting records. According to the email communication
between Ms Hlogwana and the legal practitioner, she attempted to secure an appointment
date for a meeting several times with no success. Ms Hlogwana resigned from her position
at the Legal Practice Council prior to finalisation of the inspection. I have thus taken over
Ms Hlogwana’s file and was mandated to inspect the firm’s accounting records.
16.2 I had a physical meeting with Mr Matsi on 9 September 2022. I informed him of my
mandate to conduct an inspection in terms of Section 37(2)(a) of the Act. Mr Matsi was
also informed of the scope of the inspection, as well as the information and records required
for the inspection.
16.3 Subsequent to our meeting on 9 September 2022 I sent Mr Matsi a letter, specifying the
16.3 Subsequent to our meeting on 9 September 2022 I sent Mr Matsi a letter, specifying the
accounting records required to complete the inspection.
24
16.4 After a number of follow -up emails the practitioner failed to provide me with the firm’s
requested accounting records. Despite the fact that Mr Matsi was given ample time to
provide the requested information he persisted in failing to do so. Due to the practitioner’s
failure to cooperate, the firm’s bank statements were requested directly from the firm’s
bankers in terms of Section 91(4) of the Legal Practice Act.
16.5 The inspection was thus confined to the limited information available to me, which
included information contained in the complaints, as well as the Trust bank statements
obtained directly from FNB.
16.6 In my discussion with Mr Matsi, he advised that the maintenance of the firm’s accounting
records is outsourced to an external book keeper. According to Mr Matsi the accounting
records are updated on a monthly basis. I was unable to validate the practition er’s
statements about the maintenance of accounting records, since I was not furnished with
same.’
[28] The high court also had regard to what the investigation into the applicants’
affairs had uncovered and said:
‘The first complaint to be considered is that of Ms Msiza. From the affidavits the relevant facts
regarding Ms Msiza’s complaint can be summarised as follows: It is common cause that Ms Msiza
was a client of the practitioner. Her claim against the Road Accident Fund was settled in court on
24 April 2019. The Road Accident Fund shortly thereafter, on 25 July 2019, made payment of
exactly the amount contained in the court order, namely R1 915 920.00. Shortly after that payment,
on 30 September 2019, as subseq uently determined by Mr Nyali from the respondent’s bank
statements, the respondent’s trust account only had a balance of R271 673.18. The money received
from the Road Accident Fund must therefore have been disbursed from the trust account. From
the bank s tatement it appears that it was used to pay other accounts, rather than Ms Msiza,
the bank s tatement it appears that it was used to pay other accounts, rather than Ms Msiza,
including six personal loans of the practitioner and other expenses.’
[29] It then continued:
‘The next complaint necessary to be dealt with is that of Ms Molefe. The details regarding this
complaint is shortly as follows: Ms Molefe was also a claimant in a Road Accident Fund matter.
25
She complained to the LPC that the legal practitioner has on 21 October 2022 received an amount
of R837 722.70 from the Road Accident Fund in respect of her claim.
After Mr Nyali had inspected the Trust bank statements for that month he confirmed that the
amount had indeed been received in the trust account. Shortly thereafter, however, on 31 January
2023, the trust balance was only R333 441.00. This means that a substantial portion of the amount,
if that had been the only funds in the trust account, had been disbursed without payment of it to
the client.’
[30] There was also a Ms Mogolola on whose behalf the applicants received
payment of R630 690 -00 from the RAF on 26 November 2021. From this amount
Ms Mogolola was paid measly amounts, such as R5000 -00 on 13 September 2022;
R5000-00 on 30 November 2022 and R100 00-00 on 22 December 2022. The
applicants’ response to the complaint of Ms Mogolola, which the high court
described as telling, was this:
‘Payment of the capital was made to client in the sum of R410 455.00 and this matter should be
regarded as closed. Client received payment even though party and party costs have not yet been
paid by the RAF. In fact, the RAF indicated its intention to review same. The law firm is somewhat
prejudiced, as it runs the risk of not recovering its final costs and fees in full. The real justice for
client is served. Therefore urgency does not arise, but is rather imaginative or putative, as it is
based on old, incomplete factual narratives. Urgency has to be real.’
[31] The high court proceeded to consider the question whether the LPC had made
out a case for the first applicant’s immediate suspension from practice. Insofar as
this aspect is concerned, the court said:
‘Regarding the test for suspension, this has been set out sufficiently previously in Jasat v Natal
Law Society 2000 (2) ALL SA 310 (SCA) at paragraph 10. The test is as follows: first, that the
court must decide if the alleged offending conduct has been established on a preponderance of
probabilities. After conclusion of this factual inquiry a court must consider if the practitioner
concerned is, in the determination of the court, not a fit and proper person to continue to practice.
This involves a weighing-up of the conduct complained of against the conduct expected of a legal
26
practitioner, and involves a value judgment. Thirdly, the court must inquire whether, in all the
circumstances, the practitioner in question should be removed from the roll or whether a
suspension from practice would suffice. The third enquiry is ordinaril y applicable when an
application for striking off is considered. The first two considerations, and the protection of the
public, are those considerations relevant when a temporary or interim suspension is to be
considered.
In the current case the position is as follows, and I shall not deal with all the eight complainants,
but primarily only those referred to in the replying affidavit as well as that of a Ms Mogolola.
The first complaint to be considered is that of Ms Msiza. From the affidavits the relevant facts
regarding Ms Msiza’s complaint can be summarised as follows: It is common cause that Ms Msiza
was a client of the practitioner. Her claim against the Road Accident Fund was settled in court on
24 April 2019. The Road Accident Fund shortly thereafter, on 25 July 2019, made payment of
exactly the amount contained in the court order, namely R1 915 920.00.
Shortly after that payment, on 30 September 2019, as subsequently determined by Mr Nyali from
the respondent’s bank statements, the respondent’s trust account only had a balance of
R271 673.18. The money received from the Road Accident Fund must therefore have been
disbursed from the trust account. From the bank statement it appears that it was used to pay other
accounts, rather than Ms Msiza, including six personal loans of the practitioner and other
expenses.’
[32] After making reference to certain sections of the Act and the LPC Rules the
high court said:
‘Regarding a major source of non -compliance with obligations, one has to consider whether the
obligation to keep up the books of account had been satisfied, and whether there have been
cooperation in respect thereof with Mr Nya li on behalf of the LPC. Section 87(5)(a) of the Legal
Practice Act obliges a practitioner to produce for inspection a book, document or article in his
possession or under his custody or control if such is requested by the LPC.
27
Added to this is the obligation in terms of Section 37(2)(a) of the Act, requiring a practitioner to
cooperate with the LPC when it investigates any matter. The failure to cooperate, as required by
the Legal Practice Act, has been sufficiently set out by Mr Nyali in his report.’
[33] It continued:
‘Apart from the obligation to co-operate and produce books of account, Section 87(1) of the Legal
Practice Act provides that a Trust account practice, such as that of the legal practitioner in question,
must keep proper accounting records containing particular information in respect of moneys
received and paid by its own account, and moneys received, held or paid by the acc ount of any
person.’
[34] It further noted that:
‘Rule 55(4) of the LPC Rules requires such books of account to be kept, which would present
fairly, and in accordance with an acceptable financial framework, the state of affairs of the
business, of a firm such as the practitioner in question, indicating assets and liabilities, day-to-day
receipt of moneys and entries made in respect thereof, and information of all monies held and paid
by it, or by the practitioner to the account of any person. This will include the three complainants
already referred to.
[35] Invoking certain decisions of our courts, the high court concluded that on the
facts presented on behalf of the LPC, read in the context of the response from the
applicants, it was satisfied that the infractions relied upon by the LPC were clearly
established. In the light of its finding, it went on to hold that, given the gravity of the
proven misconduct, the immediate suspension of the first applicant was imperatively
warranted.
[36] The high court subsequently refused the applicants’ application for leave to
appeal, noting that in their application for leave to appeal the applicants were merely
content to rehash their previous arguments that had failed previously instead of
content to rehash their previous arguments that had failed previously instead of
meaningfully addressing the court’s findings in its judgment in relation to the trust
28
deficits and the substance of the complaints against them dealt with extensively in
the judgment against which they sought to appeal.
[37] Undeterred by the dismissal of their application for leave to appeal, the
applicants turned to this Court, seeking leave to appeal in terms of s 17(2)(b) of the
SC Act against their immediate suspension. The application suffered a similar fate.
On 5 March 2024 the applicants then applied to the President of this Court under the
proviso to s 17(2)(f) of the SC Act for the reconsideration of the decision of the two
judges of this Court in terms of which the applicants’ application for leave to appeal
was dismissed with costs.
[38] On 7 June 2024 the President referred the decision of the two judges of this
Court, which is ordinarily final, to the court for reconsideration under s 17(2)(f) and,
if need be, also variation. It is necessary to emphasise at this juncture that at the time
when the reconsideration application was launched, ie 5 March 2024, s 17(2)(f) read,
in relevant part, as follows:
‘The decision of the majority of the judges considering an application referred to in paragraph
(b)…to…or refuse shall be final: Provided that the President of the Supreme Court of Appeal may
in exceptional circumstances, whether…or on application filed within one month of the decision,
refer the decision to the court for reconsideration and, if necessary, variation.’16
The amendment of s 17(2)(f) operative from 3 April 2024 had the effect of deleting
the phrase ‘exceptional circumstances’ , substituting it with the phrase ‘in
circumstances where grave failure of justice would otherwise result or the
administration of justice may be brought into disrepute.’ Since the applicants’ s
17(2)(f) application was already pending when the amendment took effect, the
current application falls to be determined under the pre-amendment statutory regime.
16 Section 17(2)(f) was amended with effect from 3 April 2024.
29
[39] This then raises the question whether in the context of the facts of this case
weighty and compelling factors exist warranting, upon reconsideration of the
otherwise final decision of the two judges of this Court refusing leave to appeal,
variation of such decision. To answer this question, it is necessary to have regard to
the peculiar facts of this case and, in effect, determine whether the envisaged appeal
would have a reasonable prospect of success or there is otherwise ‘some other
compelling reason why the [envisaged] appeal should be heard.’
This Court
[40] It will be recalled that in the LPC’s application , the applicants also filed a
counter-application seeking various orders. First, they sought an order reviewing and
setting aside the decision taken by the LPC on 25 May 2023 to institute motion
proceedings for the striking off the first applicant’s name from the roll of attorneys.
The basis for this prayer was that the LPC’s decision was in breach of the rules of
natural justice because he was not afforded the opportunity to defend himself prior
to the LPC t aking its decision. At the hearing, however, counsel who appeared on
behalf of the applicants abandoned this point. Counsel acted wisely in doing so, for
the LPC did no more than take a decision to report to the court what its internal
auditor had unearthed during his preliminary investigation into the financial affairs
of the applicants pertaining to the ir practice and for the court to exercise its
disciplinary powers . Once the matter was before the court , the applicants were
afforded the opportunity to resist the application as they saw fit and present their
version to the high court. Therefore, insofar as the taking of the decision to institute
legal proceedings against the applicants on the basis of the internal auditor’s report
is concerned, the issue of non -observance of the rules of natural justice does not
arise.
30
[41] In the second place, the applicants complained that Mr Nyali’s investigation
report ‘was compiled with collaboration and contribution from an erstwhile Director
of the Practice’ 17 with whom they were at loggerheads for reasons that are not
germane for present purposes. They also contended that they were not afforded
sufficient time to answer to the report before it was acted upon by the LPC. There is
no merit in the applicants’ contentions. The report formed part of the papers , and it
was therefore open to them to address it in their answering affidavit which they chose
not to do in any meaningful way, save to skirt around the crux of the matter as already
indicated above.
[42] In the third place, the applicants took issue with the fact that the LPC was
supposedly unlawfully withholding or blocking the issuance of the requisite Fidelity
Fund certificate to them. Here again, the applicants’ complaint is devoid of
substance. The first applicant, as a practising attorney, could not have been oblivious
to the fact that for him to qualify for such a certificate the practice’s auditor needed
to attest to the fact that the financial affairs of the practice were compliant with the
relevant LPC’s Rules and statutory prescripts. That is, the auditor should have given
the applicants a clean professional bill of health in relation to their trust account and
accounting records. Given the content of Mr Nyali’s investigation report it is hardly
surprising that no unqualified audit certificate was forthcoming from the applicants.
Accordingly, the applicants’ complaint on this score borders on absurdity because
from what emerges from the record the applicants were clearly the authors of their
own misfortune . All of this ineluctably leads to the conclusion that the counter -
application was manifestly doomed to failure from the outset. Thus, the high court
can not be faulted for giving this issue short shrift.
17 This was a reference to Mr Mailula who resigned from the practice in 2019.
31
[43] In any event, these proceedings being sui generis in which the LPC claims
nothing for itself, the high court was duty-bound to act after having been apprised of
the financial state of affairs in the applicants’ practice. Consequently, the counter -
application presented no obstacle to the main application being entertained because
doing so would not have violated the applicants’ fair-hearing right entrenched in s
34 of the Constitution. Indeed, in opposing the application , the applicants availed
themselves of the opportunity to present their version to the court, albeit only in the
vaguest of terms.
[44] Because of what will shortly follow, it is convenient at this juncture to refer
to the LPC’s most pertinent rules designed to reinforce some of the provisions of the
Act. The first one of these is Rule 54.6. It provides:
‘A firm shall keep in an official language of the Republic such accounting records, which record
both business account transactions and trust account transactions, as are necessary to enable the
firm to satisfy its obligations in terms of the Act, these rules and any other law with respect to the
preparation of financial statements that present fairly and in accordance with an acceptable
financial reporting framework in South Africa the state of affairs and business of the firm and to
explain the transactions and financial position of the firm including, without derogation from the
generality of this rule:
54.6.1 records showing all assets and liabilities as required in terms of section 87 of the Act;
54.6.2 records containing entries from day to day of all monies received and paid by it on its own
account, as required by sections 87(1) and 87(3) of the Act;
54.6.3 records containing particulars and information of:
54.6.3.1 all monies received, held and paid by it for and on account of any person;
54.6.3.2 all monies invested by it in terms of section 86(3) or section 86(4) of the Act;
54.6.3.2 all monies invested by it in terms of section 86(3) or section 86(4) of the Act;
54.6.3.3 any interest referred to in section 86(5) of the Act which is paid over or credited to
it;
54.6.3.4 any interest credited to or in respect of any separate trust savings.’
[45] In the second place, Rule 54.14.8, in turn, provides:
32
‘A firm shall ensure that the total amount of money in its trust banking account, trust investment
account and trust cash at any date shall not be less than the total amount of the credit balances of
the trust creditors shown in its accounting records.’
[46] And the further rule that bears mentioning is Rule 54.14.10. It reads as
follows:
‘A firm shall immediately report in writing to the Council should the total amount of money in its
trust bank accounts and money held as trust cash be less than the total amount of credit balances
of the trust creditors shown in its accounting records, together with a written explanation of the
reason for the debit and proof of rectification.’
[47] Like the learned judge in the high court, I do not intend to traverse all of the
infractions relied upon by the LPC in support of its application. I, too, will confine
myself only to some of the complaints lodged against the applicants so as not to
overburden this judgment. I am satisfied that based on the selected instances that
formed the foundation of the interim relief sought in Part A of the LPC’s notice of
motion a proper case has been made out to suspend the first applicant from practice
with immediate effect, in the public interest, pending the final determination of Part
B of the application.
[48] The five complaints to which reference will be made are those of: (a) Ms Essie
Emma Msiza; (b) Ms Tshwene Julia Morifi; (c) Ms Maditati Merriam Mogorosi; (d)
Ms Joyce Ntabeleng Mogolola; and (e) Ms April Muthimunye. I deal with the
complaints from each of these complainants in turn. Ms Msiza was awarded
damages in the sum of R1, 915 920 -00 in respect of general damages and loss of
earnings. The RAF electronically paid this amount to the applicants on 25 July 2019.
The applicants failed to inform Ms Msiz a of the payment and , in particular , to
account to her in respect thereof. The deposit of the amount was confirmed by
account to her in respect thereof. The deposit of the amount was confirmed by
Mr Nyali during his investigation into the applicants’ affairs. Of crucial importance
33
though is that a lthough the applicants had yet to account to Ms Msiza for this
payment, their trust account had a credit balance of only R217 673-18. This situation
is clearly indicative of the fact that a substantial portion of the award was no longer
held in the trust account despite the fact that no statement of account had been
rendered to Ms Msiza.
[49] Insofar as the complaint of Ms Morifi is concerned, she, too, was awarded
damages in the sum of R837 722 -70 from the RAF. On 21 October 2020 t he Fund
paid such amount into the applicants’ trust account. Some four months later, on 28
April 2021, Ms Morifi had not received payment from the applicants. Yet, three
months after receipt of the funds the trust account had a credit balance of only R354-
41. Ms Morifi ultimately received payment in the sum of R400 000 -00 from the
applicants, a year and 9 months after the remittance of the damages award to the
applicant by the RAF.
[50] As for Ms Mogorosi, she was given a runaround by the applicants. In
desperation, she approached the RAF where she was told that R300 000-00 was paid
to the applicants on 26 June 2019. The deposit of the amount was subsequently
verified from the inspection of the applicants’ trust bank statements. Nevertheless,
the inspection further revealed that as at 20 July 2019 the trust account balance was
a mere R24 869-83. As can be seen, it took less than one month for the funds to be
almost entirely dissipated by the applicants.
[51] The next complaint emanated from Ms Mogolola who had pursued a claim
against the RAF on behalf of her minor child. She was similarly treated with disdain
by the applicants, who misrepresented the true state of affairs in relation to the status
of her claim. In desperation, on 15 August 2022 she, too, approached the RAF
directly. The RAF informed her that an amount of R630 690 -00 was paid to the
34
applicants in July 2022. Yet, when she approached the applicants on 13 September
2022, some two months after the payment, who were unaware that she had already
been advised by the RAF of the payment of the award, she was told that no payment
had so far been received from the RAF. Ostensibly motivated by empathy and out
of their goodwill, the applicants offered to make an advance payment of R50 000-
00 to her from their own funds whilst supposedly still awaiting payment from the
RAF, which offer Ms Mogolola declined. An inspection of the applicants’ trust bank
statements revealed that the applicants had made payment to Ms Mo golola in three
tranches of R5000 -00; R5000 -00 and R10 000 -00 on 13 September 2022, 30
November 2022 and 22 December 2022 respectively. Thus, some five months after
the payment was made to the applicants by the RAF, Ms Mogolola was paid a
measly amount of R20 000 -00, even though the RAF had already paid the capital
amount of R630 690-00 to the applicants. And to compound matters, the applicants’
trust account held a balance of just R67 601-83 as at 1 February 2023, substantially
less than the amount of the award. Quite clearly therefore, the applicants’ trust
account did not, as at this date, hold adequate f unds so that payment of the balance
of the compensation could be made to the client. This is so even on the acceptance
of the applicants’ version that only a sum of R330 000 -00 from the award was
ultimately due and payable to Ms Mogolola.
[52] The fifth and last complaint to which reference must be made emanated from
Ms April Muthimunye. It was made to the LPC on 26 February 2022. Similarly, her
claim was against the RAF which was settled in an all-inclusive amount of R1, 157
767-72. The loss of earnings component of the claim was settled for R744 104 -00
which the RAF paid to the applicants’ trust bank account on 26 February 2019.
Almost five months later, the applicants’ trust bank statement reflected a balance of
Almost five months later, the applicants’ trust bank statement reflected a balance of
R24 869 -33 notwithstanding the fact that no payment had been made to the
complainant. Payments to the complainant from the applicants only began to trickle
35
in from 16 August 2019 in the sum of R50 000-00. Thereafter, and from 10 October
2019 to 26 November 2020, she received varying periodical payments ranging from
R20 000-00 to R250 000 -00.18 Curiously, as to why the complainant was paid in
‘dribs and drabs’ whereas the applicants had received the full amount representing
the damages award from the RAF in one fell swoop has not been explained by the
applicants.
[53] In consistently delaying payments to their clients, the applicants thereby
contravened Rule 54.12 and 13 of the LPC ’s Rules which, in relevant part, decree
that:
‘54.12 Every firm shall, within a reasonable time after the performance or earlier termination of
any mandate, account to its client in writing and retain a copy of each such account for no
less than five years. Each account shall contain details of:
54.12.1 all amounts received by it in connection with the matter concerned,
appropriately explained.
54.13 A firm shall, unless otherwise instructed, pay any amount due to a client within a
reasonable time…’
[54] It bears emphasising that in their answering affidavit the applicants did not
make even the slightest attempt to meaningfully proffer a plausible answer to any of
these damning and overwhelming allegations against them. Apart from resorting to
their oft-repeated refrain that the clients were ultimately paid what was due to them,
they elected not to address the gravamen of the complaints against them, namely that
they misappropriated trust funds. In addition, there was no explanation whatsoever,
let alone a reasonable and honest one, as to why: (a) they failed to keep proper books
of account as required by the LPC ’s Rules, in particular Rule 54.6; (b) the ir trust
account was perpetually in deficit in brea ch of statutory prescript s and regulatory
18 Ms Muthimunye was paid a total of R500 000 -00 as follows: R50 000 -00 on 16 August 2019; R50 000 on
10 October 2019; R 50 000-00 on 25 October 2019; R30 000-00 and R20 000-00 on 16 January 2020; R30 000-00 on
22 April 2020; R250 000-00 on 26 November 2020 and R20 000-00 on 26 November 2020.
36
framework; (c) the clients were not paid what was due to them within a reasonable
time of receipt of the funds from the RAF; (d) instead of co-operating with the LPC’s
internal auditor when an inspection of their trust accounting records was required, a
duty reinforced by the Act, they resorted to stratagems designed to impede or
frustrate timeous inspection of their accounting records; and (e) every attempt by the
LPC’s representatives to secure an interview with them was thwarted at every turn,
with the a pplicants conjuring up excuses for why the first applicant was not
immediately available to meet initially with Ms Hlongwane and later with Mr Nyali.
[55] Undoubtedly, t he expeditious resolution of the complaints lodged by their
clients was not a priority to the applicants. In this regard, it will be recalled that Mr
Nyali, on behalf of the LPC, wrote to the first applicant on 9 May 2019 seeking a
meeting with the latter . That meeting materialised only some 23 months later.
Instead of co-operating with the LPC to facilitate the inspection of the accounting
records, the first applicant needlessly put obstacles on the path of the LPC by, inter
alia, demanding what he at one stage described as ‘terms of reference’ when an
inspection of the accounting records , was requested. As an astute and prudent
attorney he holds himself out to be, it could hardly lie in the first applicant’s mouth
that he was unaware that in seeking an inspection of his books of account, the LPC
invoked, inter alia, s 87(5) (a) and (b)19 of the Act. Accordingly, his patently false
assertion in his answering affidavit that it dawned on him only when he read the
19 Section 87(5)(a) and (b) reads:
‘(a) Despite section 37(2)(a), any attorney or an advocate referred to in section 34(2)(b) or an employee of a trust
account practice must, at the request of the Council or the Board, or the person authorised thereto by the Council or
the Board, produce for inspection a book, document or article which is in the possession, custody or under the control
of that legal practitioner or such employee, which book, document or article relates to the trust account practice or
former trust account practice of such attorney or advocate: Provided that the Council or the Board or person authorised
by the Council or the Board may make copies of such book, document or article and remove the copies from the
premises of that attorney, advocate or trust account practice.
(b) The legal practitioner referred to in paragraph (a) or employee in question may not, subject to the provisions of
any other law, refuse to produce the book, document or article, even though he or she is of the opinion that it contains
confidential information belonging to or concerning his or her client.’
37
LPC’s founding affidavit as to what the LPC required of him is not only far-fetched
and untenable but also contrived.
[56] In these circumstances , the established facts can only lead to a single
ineluctable conclusion, namely that the first applicant disdainfully failed to comply
with the Act and the relevant LPC Rules. That the applicants ill-advisedly sought to
minimise their culpability by criticising the LPC for approaching the high court
when it did does not redound to their credit. And it must be said that their criticism
of the LPC is misguided. The LPC did no more than present to the hig h court the
facts it had unearthed through its preliminary investigation into the way the
applicants conducted their practice. As the custodian of the boni mores of the legal
profession, the LPC acted in the public interest to protect, maintain and enhance the
integrity of the legal profession. Consequently, it can hardly lie in the mouth of the
applicants to criticise the LPC for discharging its responsibility and legal duty.
[57] Lest we be misunderstood, this judgment only finds that the high court was
justified, on the facts, in reaching the conclusion it did, namely granting an order for
the immediate suspension of the first applicant together with ancillary relief.
Whether the first applicant is still a fit and proper person to remain on the roll of
attorneys – which remains doubtful on the facts currently at our disposal – is yet to
be determined under Part B of the application in due course, an issue in relation to
which we express no firm view.
Application for reconsideration
[58] As indicated at the outset 20 what serves before us is an application for the
reconsideration of the decision of 20 March 2024 made by two judges of this Court
under s 17(2)(b) in terms of which they refused the applicants’ application for leave
20 See paragraph 1 above.
38
to appeal the judgment of the high court. This came about pursuant to the order
granted by the President in terms of the proviso to s 17(2)(f) of the SC Act. Section
17(2)(f) has already been quoted in paragraph 38 above. But it will be convenient at
this juncture to quote it again. At the material time, s 17(2)(f) of the SC Act read as
follows:
‘The decision of the majority of the judges considering an application referred to in paragraph (b),
or the decision of the court, as the case may be, to grant or refuse the application shall be final:
Provided that the President of the Supreme Court of Appeal may in exceptional circumstances,
whether of his or her own accord or on application filed wit hin one month of the decision, refer
the decision to the court for reconsideration and, if necessary, variation.’
[59] As the referral order was granted on 7 June 2024 following an application
made some months earlier,21 it was common cause between the parties that it is the
pre-amendment version22 of the SC Act that regulates the referral with which we are
concerned in this case. The material change effected by the amendment was the
substitution of the words ‘in exceptional circumstances’ with the phrase ‘in
circumstances where a grave failure of justice would otherwise result or the
administration of justice may be brought into disrepute.’
[60] Significantly, s 17(2)(f) explicitly states that ‘the decision of the majority of
the judges considering an application referred to in paragraph (b) 23…to grant or
21 The application in terms of s 17(2)(f) was delivered on 5 March 2024.
22 After its amendment that took effect on 3 April 2024 s 17(2)(f) now reads:
‘ The decision of the majority of the judges considering an application referred to in paragraph (b), or the decision of
the court, as the case may be, to grant or refuse the application shall be final: Provided that the President of the Supreme
Court of Appeal may, in circumstances where a grave failure of justice would otherwise result or the administration
of justice may be brought into disrepute, whether of his or her own accord or on application filed within one month of
the decision, refer the decision to the court for reconsideration and, if necessary, variation.’
23 Paragraph (b) of s 17(2)(f) reads:
‘If leave to appeal in terms of paragraph (a) is refused, it may be granted by the Supreme Court of Appeal on
application filed with the registrar of that court within one month after such refusal, or such longer period as may on
good cause be allowed, and the Supreme Court of Appeal may vary any order as to costs made by the judge or judges
concerned in refusing leave.’
39
refuse the application shall be final: Provided…’ [Emphasis added.] Nevertheless,
as the Constitutional Court aptly observed:
‘The proviso in section 17(2)(f) is broad. It keeps the door of justice ajar in order to cure errors or
mistakes and for the consideration of a circumstance, which, if it was known at the time of the
consideration of the petition might have yielded a different outcome. It is therefore a means of
preventing an injustice. This would include new or further evidence that has come to light or
became known after the petition had been considered and determined.’24
[61] The Court, however, went on to dispel any notion that the proviso to s 17(2)(f)
served as an ‘open sesame’. It emphasised that the proviso was not intended to afford
litigants a further attempt at procuring relief that has already been refused. The Court
made plain that s 17(2) (f) was intended to enable the President to deal with truly
deserving cases where a failure of justice might otherwise result.
[62] Apropos the phrase ‘exceptional circumstances’ this Court in Avnit v First
Rand Bank Ltd25 stressed that:
‘In the context of s 17(2)(f) the President will need to be satisfied that the circumstances are truly
exceptional before referring the considered view of two judges of this court to the court for
reconsideration. I emphasise that the section is not intended to afford disappointed li tigants a
further attempt to procure relief that has already been refused. It is intended to enable the President
of this Court to deal with a situation where otherwise injustice might result. An application that
merely rehearses the arguments that have al ready been made, considered and rejected will not
succeed, unless it is strongly arguable that justice will be denied unless the possibility of an appeal
can be pursued. A case such as Van der Walt may, but not necessarily will, warrant the exercise of
the power. In such a case the President may hold the view that the grant of leave to appeal in the
other case was inappropriate.’26
24 See, in this regard: Liesching and Others v S [2016] ZACC 41; 2017 (4) BCLR 454 (CC); 2017 (2) SACR 193 (CC)
(Lieshing I) para 54.
25 Avnit v First Rand Bank Ltd [2014] ZASCA 132 (Anvit).
26 Ibid para 6.
40
[63] This theme was elaborated upon by this Court in Motsoeneng v South African
Broadcasting Corporation SOC Ltd and Others 27 where the following was stated:
‘[t]he necessary prerequisite for the exercise of the President’s discretion is the
existence of “exceptional circumstances.” If the circumstances are not truly
exceptional, that is the end of the matter. The application und er subsection (2) (f)
must fail and falls to be dismissed.’28 In Motsoeneng it was accepted by the parties
without question that an applicant in a reconsideration application referred to court
by the President is required to satisfy the Court seized with the reconsideration
application that exceptional circumstances existed that warranted the exercise of the
President’s powers under the proviso to s 17(2) (f). And Motsoeneng proceeded to
hold that ‘exceptional circumstances’ is a jurisdictional fact that must be established
before the Court to which the decision by the two judges has been referred for
reconsideration may entertain such application and therefore ‘steps into the shoes of
the two judges’ of this Court who refused leave under s 17(2)(b).
[64] In Bidvest Protea Coin Security (Pty) Ltd v Mandla Wellem Mabena , 29
Unterhalter JA put things beyond doubt and held that the existence of ‘exceptional
circumstances’ is a jurisdictional fact that must be satisfied before reconsideration
of the order refusing leave can be entertained. Save for two dissenting voices, the
decisions in Motsoeneng and Bidvest have been consistently reaffirmed in
27 Motsoeneng v South African Broadcasting Corporation SOC Ltd and Others [2024] ZASCA 80; 2025 (4) SA 122
(SCA) (Motsoeneng).
28 Ibid para 19.
29 Bidvest Protea Coin Security (Pty) Ltd v Mandla Wellem Mabena [2025] ZASCA 23; 2025 2025 (3) SA 362 (SCA)
(Bidvest).
41
subsequent cases, 30 most recently in Rock Foundation Properties and Another v
Chaitowitz.31
[65] The first dissenting voice came from Coppin JA in Lorenzi whose view was
that in a reconsideration application it was not incumbent upon an applicant to
establish that exceptional circumstances exist as a jurisdictional fact. This was
because, the learned judge opined, in the language of s 17(2)(f) it was the President,
and not the court, who was empowered to make that call. Thus, once the President
is satisfied that exceptional circumstances exist, and, as a result, refers the matter to
court for reconsideration of the decision of the two judges re fusing leave, the court
must without further ado entertain the reconsideration application, and ‘effectively
steps into the shoes of the two judges’ and decide whether to grant or refuse the
application for leave to appeal previously refused by two (or mor e) judges of this
Court under s 17(2)(b) of the SC Act.
[66] The learned judge went on to say that s 17(2)(f) was clear enough as to admit
of no ambiguity. He emphasised that ‘what is referred for reconsideration is not the
exercise by the President of her discretion, but the refusal by the two judges…to
grant the applicant the leave that is being sought.’ And that the President’s decision
to refer the matter to court ‘for reconsideration is not itself up for reconsideration, or
review…’
30 Spar Group Limited and Others v Twelve Gods Supermarket (Pty) Ltd and Others [2025] ZASCA 7; 2025 (3) SA
137 (SCA); Doorware CC v Mercury Fittings CC (836/2023) [2025] ZASCA 25 (27 March 2025) ; Lorenzi v S
(1171/2023) [2025] ZASCA 58 (13 May 2025) (Lorenzi); Ekurhuleni Metropolitan Municipality v Business
Connexion (Pty) Ltd (1186/2023) [2025] ZASCA 41 (10 Aprl 2025) ; Tarentaal Centre Investments (Pty) Ltd v
Beneficio Developments (15/2025) [2025] ZASCA 38 (8 April 2025); Nel v S (708/2023) [2025] ZASCA 89 (12 June
2025); Japhtha v S [2025] ZASCA 80; 2025 (2) SACR 305 (SCA).
2025); Japhtha v S [2025] ZASCA 80; 2025 (2) SACR 305 (SCA).
31 Rock Foundation Properties and Another v Chaitowitz (1038/2023) [2025] ZASCA 82 (9 June 2025).
42
[67] Hot on the heels of Lorenzi was the minority voice of Matojane JA in
Schoeman v Director of Public Prosecutions .32 The learned judge, too, held that
whilst the existence of exceptional circumstances is a jurisdictional fact for the
proper exercise by the President of the powers for which s 17(2) (f) provides, this is
however not a question that arises for the court to determine upfront before
entertaining the application for reconsideration referred to it by the President. After
undertaking an interpretive exercise, the learned judge held that on the clear wording
of s 17(2)(f) the exercise of the President’s power ‘inherently links the existence of
exceptional circumstances directly to the President’s power to refer.’ The effect of
this, reasoned the learned judge, was that the President alone is the repository of the
power to decide whether exceptional circumstances exist. And once that threshold
is met, in the President’s view, that is the end of the enquiry. The court itself must
thereafter proceed to determine whether variation of the decision refusing or
granting leave is warranted.
[68] Accordingly, Matojane JA held that Bidvest and all those decisions that
followed in its wake were ‘wrongly decided and [their] interpretation of s 17(2) (f)
should not be followed.’ After making reference to decisions of our Courts in
relation to the doctrine of stare decisis33 the learned judge concluded that Bidvest
was clearly wrong. And that had he commanded the majority, he would therefore
have overruled Bidvest.
[69] The intrinsic value of the doctrine of precedent is beyond question. This was
made plain by the Constitutional Court in Camps Bay Ratepayers’ and Residents’
Association and Another v Harrison and Another.34 The Court said the following:
32 Schoeman v Director of Public Prosecutions [2025] ZASCA 124; 2025 (2) SACR 561 (SCA) (Schoeman).
33 Literally means ‘stand by previous decisions’ ie precedent.
33 Literally means ‘stand by previous decisions’ ie precedent.
34 Camps Bay Ratepayers and Residents Association and Another v Harrison and Another [2010] ZACC 19; 2011 (2)
BCLR 121 (CC); 2011 (4) SA 42 (CC).
43
‘Observance of the doctrine has been insisted upon, both by this Court and by the Supreme Court
of Appeal. And I believe rightly so. The doctrine of precedent not only binds lower courts but also
binds courts of final jurisdiction to their own decisions. T hese courts can depart from a previous
decision of their own only when satisfied that that decision is clearly wrong. Stare decisis is
therefore not simply a matter of respect for courts of higher authority. It is a manifestation of the
rule of law itself, which in turn is a founding value of our Constitution. To deviate from this rule
is to invite legal chaos.’35
[70] In a most recent judgment36 of this Court, Moetsoeneng, Bidvest, Lorenzi and
Schoeman were overruled to the extent that those decisions adopted the so -called
‘jurisdictional fact interpretation’ that had the effect of contradicting what the
Constitutional Court said in Liesching I and Liesching II concerning the proper
interpretation of the proviso to s 17(2) (f) of the SC Act. Indeed, to my mind, the
approach adopted in Motsoeneng and re-inforced both in Bidvest and by the majority
in Schoeman relative to the proper interpretation of s 17(2)(f) of the SC Act, is, with
respect, jurisprudentially unsound.
[71] It is therefore unnecessary for present purposes to traverse the same ground in
this judgment. Suffice it to reiterate that in all instances where the President refers a
decision of two judges of this Court refusing or granting leave to appeal to the court
for reconsideration, such a court is simply required to place itself in the shoes of the
judges who dealt with the application under s 17(2)(b) and determine whether such
decision is legally sustainable or not – accepting that the President in whom the
discretion to determine the existence of exceptional circumstances vests – has
already made that determination. Hence the matter is before the court purely for the
reconsideration of such decision and, if necessary, its variation . And, if on the one
reconsideration of such decision and, if necessary, its variation . And, if on the one
hand the court should find that leave was correctly refused it will, as a result, dismiss
35 Ibid para 28.
36 4 Seasons Logistics CC v Kgotse [2026] ZASCA 09 delivered on 04 February 2026.
44
the reconsideration application. On the other hand, if in the opinion of the court leave
to appeal should have been granted, the court would then enter into the substantive
merits of the appeal as contemplated in the referral order and determine the appeal
itself. However, in instances where leave to appeal was sought against a decision of
a magistrates’ court , the court would in that event, if so inclined, grant leave to
appeal to the relevant Division of the High Court.37
[72] What the applicants appear to have lost from sight in pursuing this application
is that once the high court decided that the immediate suspension of the first
applicant was imperatively warranted, it passed a value judgment and in effect
exercised a true discretion. Therefore, an appellate court’s interference with the
exercise of such discretion is permissible only on restricted grounds.38 Thus, where
the appellate court is required to interfere wi th the exercise of the discretion of the
kind exercised by the high court, it can only do so if the discretion was exercised
capriciously, or upon a wrong principle or the court failed to bring its unbiased mind
to bear on the question or has not acted for substantial reasons.39
[73] Having regard to the extent of the widespread and unabated abuse of the
practice’s trust account by the first applicant, I am not convinced that the high court
exercised its discretion improperly. On the contrary, what emerges from the record
in this case is that the first applicant operated his practice’s trust account as a Ponzi
Scheme. And because he habitually rolled over trust funds, he engaged in what can
appropriately be described as a proverbial case of ‘robbing Tom in order to pay
Harry.’ The applicants’ situation was compounded by the fact that instead of making
37 Compare: S v Khoasasa 2003 (1) SACR 123 (SCA); [2002] 4 All SA 635 (SCA) para 19; S v Matshona [2008]
ZASCA 58; 2013 (2) SACR 12 (SCA) para 5-7.
ZASCA 58; 2013 (2) SACR 12 (SCA) para 5-7.
38 See Beyers v Pretoria Balieraad 1966 (2) SA 593 (A) at 605F-H; Olivier v Die Kaapse Balieraad 1972 (3) SA 485
(A) at 495D-F; Swain v Society of Advocates, Natal 1973 (4) SA 784 (A) at 786H.
39 Benson v SA Mutual Life Assurane Society 1986 (1) SA 776 (A) and the authorities therein cited.
45
a clean breast of themselves and taking the court into their confidence, they elected
to resort to obfuscation by indulging in linguistic acrobatics. By all accounts, this is
not the sort of conduct befitting someone enjoined the privilege of practi sing an
honourable profession as an officer of the court.
[74] By his conduct, the first applicant has tarnished the image of the profession.
As will have been observed from the extensive quotations from the LPC’s founding
affidavit, the averments contained therein tell a sorry tale of a troubling indifference
to and wanton disregard for the LPC’s Rules and statutory prescripts under the Act
to the prejudice of the clients. Instead of taking responsibility for his misconduct,
the first applicant flippantly asserted that the complaints were non-existent because,
after all, the clients were eventually paid what was due to them. In my view, one
would be hard pressed to contend, as the applicants do, that the first applicant
deserves to be allowed to continue to practise when he has demonstrated that he has
no insight into the gravity of his infractions. To do so , in my view, would be
tantamount to unleashing him to unsuspecting members of the public to the latter’s
detriment.
[75] What requires to be emphasised is that an attorney, as an officer of the court,
belongs to an honourable profession. The profession scrupulously demands absolute
honesty, reliability and integrity from its members. Equally, the members of the
public who entrust their affairs to an attorney are entitled to assume that their affairs
will be handled honestly, meticulously and with the requisite skill. This entails that
where an attorney receives money on behalf of his or her client the money will not
be used for any other purpose than for the purpose and benefit of the client. And that
the attorney will pay moneys due to his or her client within a reasonable time. It is
totally unacceptable for an attorney to use money received on behalf of a client for
totally unacceptable for an attorney to use money received on behalf of a client for
his or her personal needs as has been witnessed in this case. As has been repeatedly
46
said in countless decisions of our courts, the theft of money held by an attorney in
trust on behalf of clients and persistent vain attempts by such attorney to rationalise
his or her conduct and to pretend that there is nothing wrong he or she has done not
only reflect adversely on his or her character but also bring the profession as a whole
into disrepute.
[76] By now it must be obvious from what has already been said, particularly in
paras 72 to 76 above, that I am not convinced that the high court was influenced by
any wrong principle or acted for reasons that were not substantial in granting an
order for the first applicant’s immediate suspension whilst still awaiting the outcome
of Part B of the LPC’s application. Hence, it is hardly surprising that Kumalo J
exercised his discretion under s 18(1) of the SC Act and found that the operation of
the order of the high court would not be suspended pending the outcome of the
appeal process that the applicants had embarked upon. Having had the benefit of
reading the record, we wholeheartedly endorse the order of Kumalo J.
[77] This then brings me to the order made by the Full Court on 18 February 2025
pursuant to the appeal brought by the applicants under s 18(4) (ii) of the SC Act.
With Kumalo J having found that exceptional circumstances exist justifying that the
operation and execution of the order of Davis J should not be suspended
notwithstanding the applicants’ application for leave to appeal pending before this
Court, the indefatigable applicants invoked their automatic right to appeal against
such order to the Full Court. On 18 February 2025 the appeal served before the Full
Court. Inexplicably, the Full Court was somehow persuaded that the order of Davis
J immediately suspending the first applicant from practi sing ought to be stayed
pending the outcome of any ‘appeal court process.’ Consequently, it allowed the first
applicant to resume practise, albeit subject to certain stringent conditions. Although
applicant to resume practise, albeit subject to certain stringent conditions. Although
the applicants were required to account to the curator bonis in control of their
47
practice affairs, the effect of the full court’s order was indubitably to unleash the first
applicant to the unsuspecting public, a grave risk that was evident from the papers
for all to see.
[78] In keeping with judicial comity, it is not a pleasant thing to make adverse
remarks about colleagues. However, in the context of the fact s of this case , I am
constrained to observe that it is difficult to understand how the Full Court deemed it
appropriate that the operation of the suspension order granted by the high court ought
to be stayed. I say t his because there was, and still is, clear and overwhelming
evidence that the first applicant treated his trust account – that was perpetually in
deficit in substantial amounts – as his piggybank. That the order of the Full Court
was apparently granted by agreement between the parties, does not mitigate the
potential adverse consequences of allowing the first applicant back to his practice
given the extent and scale of his infractions. Such an order should never have been
granted in the first place. This is so because officers of the court, like attorneys, are
accountable to the courts that preside over them. This entails that the court alone is
the final arbiter as to whether legal practitioners are still fit and proper persons to
remain on the roll. There is also s 44(1)40 of the Act which explicitly empowers the
courts, without flinching, to exercise discipline over legal practitioners.
[79] To compound matters, in resisting the application, the first applicant was not
candid with the high court as would be expected of an officer of the court. He
assiduously avoided pertinently dealing with the thrust of the LPC’s case against
him. As already indicated, he repeatedly contented himself with a disdainful refrain
that whatever happened his former clients were ultimately paid what was due to
40 Section 44(1) which is headed ‘Powers of the High Court’, reads in relevant part as follows:
‘The provisions of this Act do not derogate in any way from the power of the High Court to adjudicate upon and make
order in respect of matters concerning the conduct of a legal practitioner…or a juristic person.’
48
them. However, this cannot avail nor absolve the applicants from accountability for
at least two reasons. First, they failed to properly and timeously account to their
clients as required in terms of the LPC’s Rules. Second, they chose to avoid
responding directly to the categorical averments under oath made by the deponent
to the LPC ’s founding affidavit that they were effectively rolling trust funds. To
sustain what, by all accounts, amounted to a fraudulent scheme, the applicants
resorted to misrepresenting the true situation to their clients by, in certain instances,
telling a palpable lie that the RAF had still not paid the agreed amount. Generally,
this was the applicants’ mode of operation which p laced their personal interests
above those of their clients. By all standards and bearing in mind what the statutory
and regulatory prescripts require, the first applicant’s conduct is the antithesis of
what is expected of a legal practitioner and officer of the court.
[80] The question then remain s: are there any compelling and substantial factors
in this case to warrant variation of what is otherwise a final decision of the two
judges of this Court under s 17(2)(d) of the SC Act in terms of which the applicants’
application for leave to appeal was dismissed . I cannot discern any such factors,
meaning that the answer must be a resounding ‘No’. In these circumstances the
application for reconsideration of the decision refusing leave to appeal must
similarly fail.
[81] Before concluding, t here is one further point to address, albeit briefly. It is
this. The record in this application has been overburdened with multiple pages of
irrelevant material which should never have been included in the record. Although
the applicants were advised by their adversary to omit the irrelevant material , they
paid no heed to this and persisted in their obdurate desire to include all manner of
material that had no bearing on the issues raised in this application. This is
material that had no bearing on the issues raised in this application. This is
deprecated. Had the applicants been successful in this Court, I would have seriously
49
considered awarding costs against them to mark our displeasure at their conduct in
causing the members of the bench in this case to waste valuable judicial time
trawling through irrelevant material.
[82] In conclusion, it bears mentioning that from what has emerged from the
record, the applicants have clearly evinced a determination to thwart the effect of the
order granted by Davis J on 30 August 2023. In adopting this stance, the applicants
are still putting their personal interests above those of the legal profession and the
general public. As this Court has inherent powers to exercise discipline over legal
practitioners, in addition to the statutory powers conferred upon it by s 44(1) of the
Act, it is incumbent upon it in this instance to invoke such powers without flinching
to protect both the image of the legal profession and the general public. It is therefore
necessary to ensure that henceforth the operation and execution of the order
suspending the first applicant from practising as an attorney with immediate effect
is not undermined to protect not only the public but also the integrity of the legal
profession. This will be provided for in the order set out below.
Costs
[83] Insofar as the costs are concerned, there is no reason to depart from the general
rule that costs follow the result. Since the LPC is litigating in the interests of the
court itself to protect the image of the legal profession and the public at large, there
is no reason not to award it its costs on the attorney and client scale in keeping with
abiding jurisprudence of our courts.
Order
[84] In the result the following order is made:
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1 The application referred to the court in terms of s 17(2) (f) of the Superior
Courts Act 10 of 2013 for the reconsideration of the decision made on 20 February
2024 under s 17(2)(b) is dismissed with costs on an attorney and client scale.
2 The operation and execution of the order granted by the Gauteng Division of
the High Court, Pretoria on 30 August 2023 suspending the first applicant from
practising as a legal practitioner with immediate effect shall not be suspended or
stayed pending the decision of any application or appeal that the applicants might
institute in future.
X M PETSE
ACTING JUDGE OF APPEAL
51
Appearances
For the applicants: M R Maphutha with A Seshoka and P Tolo (Pupil)
Instructed by: Matsi Law Chambers, Pretoria
Honey Attorneys, Bloemfontein
For the respondent: I Hlalethoa
Instructed by: Mphokane Attorneys, Pretoria
Phatshoane Henney Attorneys, Bloemfontein