IN THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
DLABANTU AND ASSOCIATES INCORPORATED
and
LITSOANE GERMINA LITSOANE
ROAD ACCIDENT FUND
In re:
LITSOANE GERMINA LITSOANE
and
ROAD ACCIDENT FUND
Not Reportable
Case no: 4962/2019
APPEAL CASE NO: A 164/2024
APPELLANT
FIRST RESPONDENT
SECOND RESPONDENT
PLAINTIFF
DEFENDANT
Neutral citation: Dlabantu and Associates Incorporated v Utsoane Germina Utsoane
and Another (4962/2019 and A164/2024) [2026] ZAFSHC 55 (13
February 2026)
Coram: DAFFUE, REINDERS and MOLITSOANE JJ
Heard: 15 September 2025
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Delivered: 13 February 2026
Summary: Legal practice - s 84 of the Legal Practice Act 28 of 2014 - whether
a suspended attorney who is a director of an incorporated company can represent the
company as a legal practitioner in proceedings before court - variation of an order which
has a patent error as contemplated in Uniform rule 42(1 )(b).
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ORDER
The appeal is dismissed with costs, such costs shall include the costs of counsel on scale
B.
JUDGMENT
Molitsoane J (Daffue J and Reinders JJ concurring)
[1] This is an appeal with leave of this Court, against the judgment and order of a
single judge of this Division in which the court ordered the second respondent to pay the
first respondent's compensation into the attorneys' trust bank account of the first
respondent. At the inception of the hearing, Mr Dlabantu, the sole director of the appellant,
purported to represent the appellant in the appeal before us. We denied him the audience
and undertook to give our reasons in the main judgment.
[2] Mr Ongamo Dlabantu was employed by Motaung Attorneys as a legal practitioner.
He was the attorney responsible for the institution and prosecution of a third-party claim
of the first respondent against the second respondent (RAF). This claim was settled. On
10 March 2022 the first respondent accepted and signed an offer of settlement which
specifically stipulated that payment of compensation by the RAF would be made into the
trust banking account of Motaung attorneys .
[3] On 5 October 2022, Mr Dlabantu left the employment of Motaung Attorneys. He
later commenced practicing for his own account under the name and style, Dlabantu and
Associates Incorporated. He was the sole director of this incorporated company. It
appears that on 25 October 2022, Mr Dlabantu and the first respondent had a consultation
which led to the first respondent signing a document terminating the mandate of Motaung
Attorn eys. It also appears that the first respondent also signed a special power of attorney
empowering Mr Dlabantu to carry out the mandate concerning her claim against the RAF.
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This special power of attorney mandated Mr Dlabantu, inter alia, to: (i) institute a delictual
claim against the RAF; (ii) obtain all facts, medical records, accounts relating to the injury
sustained by the first respondent from relevant doctors and hospitals; (iii) consent to the
inspection of information by any parties; (iv) do all that is necessary for the speedy and
effective finalization of that claim by the RAF; (v) negotiate any settlement on behalf of
the first respondent; (vi) sign all necessary forms for the prosecution and settlement of
the claim on behalf of the appellant; and (vii) to receive the capital and costs of the
compensation of the first respondent from the RAF.
[4] There is a dispute between the appellant and the first respondent as to how the
termination of Motaung Attorneys' mandate and the first respondent came about. On the
version of the appellant, Mr Dlabantu was contacted by the first respondent and a
consultation was scheduled for 24 October 2022. According to Mr Dlabantu, the first
respondent expressed concerns in the delay of payment of her compensation and wanted
Mr Dlabantu to continue assisting her to pursue the payment. Mr Dlabantu advised the
first respondent that in order to ensure that the compensation was not paid to Motaung
Attorneys, she had to terminate their mandate, in which case the money would be paid
into the appellant's bank account, which in turn, would pay over any monies due to
Motaung Attorneys for services rendered by them, before the termination of the mandate.
According to the appellant, the first respondent then terminated the mandate of Motaung
Attorneys and appointed the appellant as her _legal representatives.
[5] On the version of the first respondent, she was contacted by Mr Dlabantu who
scheduled an appointment with her. During the consultation, Mr Dlabantu informed her
that he had prepared documents which needed her signature and would email same to
that he had prepared documents which needed her signature and would email same to
her. She avers as follows in her founding affidavit, which was before the court a quo:
'Upon receiving that email from Mr Dlabantu, I noticed that the documents that he needed me to
sign where, inter alia, termination of mandate of Motaung Attorneys, a confirmatory affidavit and
a contingency fee agreement wherein Dlabantu and Associates Incorporated, the company
unknown to me, were appointed as my attorneys, I requested Mr Dlabantu to provide me with
reasons why I had to sign these documents and he told me that he was doing this in terms of the
instructions of Mr Motaung of Motaung Attorneys and that I had to sign same on that day if I
wanted my money.'
According to her, she then reluctantly signed the documents.
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[6] The appellant then launched an application to make the settlement agreement an
order of court. On 10 November 2022, Mhlambi J (Mhlambi J order) made the settlement
agreement an order of court. The court also ordered that the compensation by the RAF
be paid into the trust banking account of the appellant as opposed to the trust banking
account of Motaung Attorneys which was stipulated in the settlement agreement.
According to the first respondent, she thereafter consulted with Mr Motaung about her
matter. The consultation revealed that the whereabouts of the file of the first respondent
were unknown to Motaung Attorneys. An investigation was launched by Motaung
Attorneys which culminated in the order by the court a quo varying the Mhlambi J order
and effectively removing the appellant as the payee into which the compensation had to
be deposited and substituting Motaung Attorneys in its stead. This varied order is the
subject of the dispute and appeal before us.
[7] The court a quo held that the settlement of the claim of the first respondent against
the RAF occurred before Mr Dlabantu left the employment of Motaung Attorneys. This
was before payment could be affected into the trust banking account of Motaung
Attorneys. The court a quo also held that the Mhlambi J order differed from the settlement
agreement, and at the time the order was made, the settlement agreement had not yet
been amended. Further, the court a quo found that the order reflected incorrect banking
details stipulated in the settlement agreement and as a result, the court deemed it fit to
vary it to be in line with what was contained in the settlement agreement.
[8] The judgment of the court a quo is assailed on various grounds. It is contended
that the court a quo erred in that: (i) it failed to correctly apply principles regarding motion
proceedings and dealing with disputes of fact; (ii) the court a quo conflated the appellant
proceedings and dealing with disputes of fact; (ii) the court a quo conflated the appellant
with its director; (iii) the court a quo failed to apply the principles regarding joinder and
various other grounds which in my view are unnecessary to deal with as they would have
no impact on the order I wish to propose.
[9] As a starting point, I will deal with the issue of Mr Dlabantu's standing, as it is also
the reason for our decision to refuse to grant him audience during the appeal. I hasten,
however, to indicate that in spite of the fact that we refused to hear Mr Dlabantu, we had
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regard to the comprehensive heads of arguments prepared by him on behalf of the
appellant in which he listed 71 authorities.
[10) These are the reasons for refusing to grant him audience: On 8 November 2024,
Mr Dlabantu was suspended by the court from the roll of practising legal practitioners.
This meant that, since Mr Dlabantu was the sole director of the appellant, the appellant
had no legal practitioner to run or overseer its affairs as a legal firm. The appeal before
us was enrolled for hearing on 15 September 2025. Prior to the hearing, on 28 August
2025, my brother Daffue J addressed a letter to Mr Dlabantu through his secretary in
which the following was stated:
'You have been suspended to practice as an attorney under case number 3712/2024. Your
application for live to appeal was dismissed by the Supreme Court of Appeal on 24 June 2025
under reference number 312/2025. You allege in your heads of argument dated 23 August 2025
that on 28th July 2025 you have lost an application for reconsideration with the President of the
SCA. Mr P Myburg of the high court has been in contact with the SCA today but no records could
be found of any such application for reconsideration.
If this is correct there cannot be any argument that the suspension decision has been suspended
in terms of section 18(1) of Act 10 of 2013. In any event you are not in possession of a Fidelity
Fund certificate and may not practice as an attorney.
Insofar as you believe that you may act in the appeal in your capacity as a director of the appellant,
you shall urgently and not later than Monday, 1 September 2025 at 16H00 present written heads
of argument to support such contention.'
[11] When we heard the appeal on 15 September 2025, Mr Dlabantu had not
responded to the letter of Daffue J above. At that stage, we accordingly held the view that
Mr Dlabantu had not responded to the invitation to clarify the status of the application for
Mr Dlabantu had not responded to the invitation to clarify the status of the application for
reconsideration and had not responded to the fact that he had no Fidelity Fund certificate.
In the result, we held a view that the order of suspension had not been suspended by the
filing of an application for reconsideration and Mr Dlabantu did not have a Fidelity Fund
certificate. In the heads of argument, Mr Dlabantu submits that as a director of the
incorporated company, he is entitled to represent it in a court of law. He submitted that
the existence of an incorporated company did not cease upon the suspension from
practice of its sole director, who is an attorney. He thus contends that its personality
endures beyond the suspension. He further submits that, as a director of the incorporated
company he is not rendering any legal services in expectation of any fee, commission or
reward and he consequently argues thats 84(1) of the Legal Practice Act 28 of 2014 (the
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LPA) was not applicable as he had not received nor did he hold any funds or property
belonging to any person. However, this argument is flawed.
[12] In the letter of Daffue J, Mr Dlabantu was referred to two hurdles which stood in
his way of representing the appellant. In my view, proof of any one of them affected the
status of Mr Dlabantu as an attorney. In his heads of arguments, he seems fixated on the
appeal procedures which, in his view, suspended the order of suspension. However, he
conveniently fails to appreciate, or simply ignores, the fact that he has no Fidelity Fund
certificate. Even if we were to accept for a moment that the order of suspension had been
suspended by the operation of Uniform rule 18( 1) as he has filed a reconsideration
application in terms of s17(2)(f)), he still cannot practise as an attorney due to his lack of
possession of a Fidelity Fund certificate. Section 84 of the LPA 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 a state advocate and who practices or is deemed to practice-
(a)
(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 preferred to in subsection (1) or a person employed or supervised by
the 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.
[13] Mr Dlabantu was suspended from practice for, inter alia, practising without a valid
Fidelity Fund certificate. In the heads of argument filed on behalf of the appellant dated
23 August 2025, he confirmed that he did not have such certificate. Accordingly, he
cannot practise as an attorney. Furthermore, under the common law, a director or
cannot practise as an attorney. Furthermore, under the common law, a director or
shareholder does not, in general, have a right to legally represent a juristic person in a
court of law . Such representation is only permissible in rare or exceptional circumstances
and upon proper substantive application being made to the court. In Manong & Associates
(Pty) Ltd v Minister of Public Works and Another 1 (Manong) the court held that '[t]he rule
that a company cannot conduct a case in this court except by the appearance of counsel
1 Manong & Associates {Pty) Ltd v Minister of Public Works and Another (2009] ZASCA 110; 2010 (2) SA 167 (SCA).
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on its behalf was laid down in the Yates Investments (Pty) Ltd v Commissioner for Inland
Revenue.' 2
[14] The court went further to deal with the inherent powers of the Constitutional Court,
the Supreme Court of Appeal and Divisions of the High Court as derived in s 173 of the
Constitution. Manong then proceed to hold as follows:
'[13] It is important to emphasize that the power vested in the court in this regard is a purely
discretionary power. In general, and without attempting to lay down any hard and fast rules,
discretionary audience should be regarded as a reserve or occasional expedient. For whilst we
must be free to review the Yates rule in the light of currently prevailing conditions and
requirements, we perhaps need to remind ourselves that given the increasing complexity of
litigation, the rule may well be required as strongly today as it, ever was. In those circumstances
an unqualified and inexperienced person may do more harm than good to the corporate litigant
that he purports to assist.
(14] I have expressly refrained from formulating a test for the exercise of the court's inherent
power as I believe that such cases can confidently be left to the good sense of the judges
concerned. Lest this be misconstrued as a tacit or general licence to unqualified agents, it needs
to be emphasised that in each such instance leave must be by way of a properly motivated,
timeously lodged formal application showing good cause why, in that particular case, the rule
prohibiting non-professional representation should be relaxed. Individual cases can thus be met
by the exercise of the discretion in the circumstances of that case. It would thus be impermissible
for a non-professional representative to take any step in the proceedings, including the signing of
pleadings, notices or heads of argument (as occurred here), without the requisite leave of the
court concerned first having been sought and obtained.'
[15] There was no application before us to enable us to exercise our discretion. Mr
[15] There was no application before us to enable us to exercise our discretion. Mr
Dlabantu has not established any rare or exceptional circumstance why we should allow
him to represent the appellant. Importantly, the purpose for which the appellant was
established needs to be taken into account, namely, to conduct a legal practice. Without
the driver, in the form of a practising attorney, the firm cannot practice. A prohibited person
like Mr Dlabantu cannot climb on the bandwagon of being a director per se in order to
represent a professional company. The situation might be different if the company was
an entity selling goods, not where the monies of the clients are at serious risk. It is on this
2 Ibid para 4, footnote omitted.
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basis that I hold that Mr Dlabantu cannot enjoy audience before us. Even if he had filed
an application for reconsideration in terms of s 17(2)(() of the Superior Courts Act, the fact
of the matter remains that he is still not in possession of a Fidelity Fund certificate. This
is reason enough to deny him audience before a court of law unless he represents
himself.
[16) Uniform rule 42(1 )(b) empowers the court mero motu or upon the application of
any affected person, to rescind or vary an order or judgment in which there is an ambiguity
or a patent error or omission to the extent of such ambiguity, error or omission. In this
case, the settlement agreement clearly indicated that the compensation had to be
deposited into the account of Motaung Attorneys. I agree with the court a quo that at the
time when the settlement agreement was made an order of the court, it had not been
amended to allow payment into the account of the appellant. It cannot be disputed that
the banking details appearing in the settlement agreement differed from those in the order
of Mhlambi J, thereby constituting a patent error as contemplated in rule 42(1 )(b) and as
held by the court a quo. The finding of the court a quo is unassailable in this regard.
[17) On the issue of non-joinder, Mr Dlabantu asserts that he ought to have been joined
in these proceedings. The analysis of his complaint in the heads of arguments seems to
revolve around the issue of alleged misconduct against him. He states that the court a
quo 'misdirected itself ... by making findings against Mr Dlabantu without him being heard
in respect of what amounts to prima facie acts of misconduct.' I fail to understand why the
court a quo had to grapple with what essentially was an issue in the suspension
application of Mr Dlabantu. The court a quo indicated that it limited its judgment on the
question of whether the order reflected the correct banking details contained in the
question of whether the order reflected the correct banking details contained in the
settlement agreement and whether this error was patent as provided for in rule 42(1 )(b).
There was no need for him to be joined, reference to his conduct had nothing to do with
the order granted. He had no substantial interest in the order granted. In any case, it is
an established principle of our law that an appeal lies against the judgment or order and
not the reasons for granting it3. In my view, the attack on the judgment of the court a quo
on non-joinder is irrelevant for the adjudication of the dispute between the parties.
3 Neotel(Pty) Ltd v Telkom SOC & Others ( 605/2016) 12017] ZASCA 47 (31 March 2017) para 15.
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(19) I have already set out the versions of the parties as to how the termination of the
mandate of Motaung Attorneys came about. In my view, who called who is of no
consequence for the adjudication of this dispute. That dispute of fact is immaterial. What
is common cause is that the parties met and the documents were completed and signed.
It bears mentioning that what surprises me is the fact that the power of attorney given to
Mr Dlabantu empowered him to investigate the claim, obtain medical records and
negotiate settlement of the claim. One would ask oneself why the first respondent had to
sign the power of attorney as if no claim had already been lodged with the RAF and that
only payment was awaited. The gripe of the first respondent that she was pressurised to
sign the agreement without first discussing it with her parents does not take this matter
anywhere. The first respondent is an educated person, a lecturer. She can easily take the
decision independently. Another fact which must also be taken into account is the
undisputed reality that the director of the appellant has no Fidelity Fund certificate and is
precluded from handling the clients' monies. If we agree to reverse the order of the court
a quo, we would impermissibly allow the appellant to deal with the compensation of the
first respondent contrary to the law. In my view, this cannot be correct. When the
settlement was initially reached, Mr Dlabantu was an employee of Motaung Attorneys.
However, nowhere does he indicate how the first respondent's file came to be in his
possession. There is no evidence that after termination of the mandate of Motaung
Attorneys he also demanded the file from them. This is suspicious. The uncontested
evidence is that Motaung Attorneys had no idea where their file was. It was not up to the
appellant to amend the order, as done in the Mhlambi order.
[20] I hold the view that the appeal should fail. On the issue of costs, there is no reason
[20] I hold the view that the appeal should fail. On the issue of costs, there is no reason
why the costs should not follow the cause. I accordingly propose the following order:
The appeal is dismissed with costs; such costs shall include the costs of counsel on scale_
B.
P E MOLITSOANE
JUDGE OF THE HIGH COURT
I concur.
I concur.
Appearances
For the appellant:
Instructed by:
No appearance
Dlabantu and Associates,
Bloemfontein
For the first respondent: MS Litheko
Instructed by: Motaung Attorneys
Bloemfontein.
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JP DAFFUE
JUDGE OF THE HIGH COURT
JUDGE OF THE HIGH COURT