IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
CASE NO. CA&R 160/2025
In the matter between:
THE STATE
and
JUMA SAIDI ACCUSED
JUDGMENT ON REVIEW
Rugunanan J
[1] Central to this matter on review from the district Magistrate’s Court at
East London, is whether the proceedings before the magistrate are vitiated by
the appearance of Mr Lodwa Mnyani when he purported to represent the
accused during criminal proceedings that commenced on 7 March 2024. Mr
Mnyani is not a legal practitioner admitted and enrolled in accordance with the
Legal Practice Act 28 of 2014 (hereafter the LPA or the Act depending on the
context). Although the accused has secured alternative legal representation, the
proceedings against the accused have since not been finalised.
[2] Seeking interlocutory intervention by this Court, at this stage, the
magistrate directed a letter to the registrar of this Court. The letter which is
dated 5 September 2025 reads:
‘RE: S v JUMA SAIDI - Special Review – Case No. A3630/23
1. It is hereby requested that the above -mentioned matter be placed before a judge in
chambers for special review for the following reasons:
a. The accused in this matter was represented by Mr Lodwa Mnyani, a private legal
practitioner.
b. The accused has been charged with the offence of contravening section 49(1) (a) read
with sections 1(1), 9, 10, 10A, 10B and 25 of the Immigration Act 13 of 2002.
c. The accused pleaded guilty in accordance with section 112(2) of the Criminal
Procedure Act 51 of 1977, and a guilty plea and guilty judgment were entered against
the accused, whereafter upon further questioning by the court, the accused’s plea was
amended to that of not guilty in accordance with section 113 of the Criminal
Procedure Act.
d. This matter proceeded to trial and after the evidence of the State’s [first] witness, the
accused’s legal representative’s authority to appear as a legal practitioner in court
proceedings was placed into question by the State.
e. The court afforded Mr Mnyani a number of opportunities to satisfy the court of his
right of appearance, and after not being provided with documentary evidence to the
satisfaction of the court, the presiding judicial officer made contact with the offices of
the Legal Practice Co uncil to enquire directly as to the legitimacy of Mr Mnyani to
appear on behalf of the public in court proceedings.
f. I attach hereto an email thread which evidences the exchange between myself, as the
presiding judicial officer herein, and the Legal Prac tice Council, wherein it was
confirmed by the Legal Practice Council that Mr Mnyani was registered as a
candidate legal practitioner on the 10 October 2022, and that his Practical Vocational
Training had expired on the 9 October 2023. Subsequent to the exp iration of his
Practical Vocational Training Mr Mnyani was not admitted as an attorney, and it is
understood that he therefore had no right of appearance from the 10 October 2023.
g. Mr Mnyani placed himself on record and commenced representing the accused on the
7 March 2024. Accordingly, at the time that Mr Mnyani was representing the accused
herein he had no right to appear as a legal practitioner in court proceedings.
h. Subsequent to the court initiating enquiries into Mr Mnyani’s right of appearance, Mr
Mnyani commenced distancing himself from this matter by first indicating that he
would be instructing counsel to continue the defence of this case, and thereafter failed
to appear on behalf of the accused, with the accused having to secure new legal
representation.
2. As a result of the aforementioned, this matter is referred to the Honourable Court for
the reviewing the aforementioned proceedings as being irregular on account of the
accused’s legal representative not having a right to appear, and it is respectfully
requested that such proceedings be set aside.’
[3] That Mr Mnyani may well have represented the accused ably and
competently at the trial is not the issue on the facts presented by the magistrate;
nor is the contrary evinced in the record of the proceedings before the
magistrate.1
1 The record comprises of a transcript of the proceedings on 27 March 2024; 18 April 2024 and 27 June 2024.
[4] A legal practitioner is defined in s 1 of the LPA as ‘an advocate or
attorney admitted and enrolled as such in terms of sections 24 and 30,
respectively’.
[5] It is without question that Mr Mnyani is not a legal practitioner admitted
in accordance with the Act. Read in unison, s 24(1) and s 84(1) of the Act
places an obligation on a legal practitioner enrolled as such to be in possession
of a Fidelity Fund Certificate (certificate) 2. The obligation distinc tly applies to
an attorney or to an advocate who conducts his or her own practice and who
renders legal services upon receipt of a request directly from a member of the
public or from a justice centre. Putting it informally, Mr Mnyani is a non -
practitioner who purported to practise as a legal practitioner albeit without
holding a certificate. The crisp issue on review is whether his standing, as such,
vitiates the proceedings in the trial court.
[6] The magistrate’s letter conveys that Mr Mnyani’s standing rend ers his
involvement in the proceedings before her, ‘irregular’. But the lens through
which the requested review process is to be undertaken by this Court is not
identified. Given that s 304(4) of the Criminal Procedure Act 51 of 1977 does
not apply, the intent, presumably, is that the matter be considered on the basis of
2 The relevant sections read:
‘24 Admission and enrolment
(1) A person may only practice as a legal practitioner if he or she is admitted and enrolled to practice as
such in terms of this Act.
…
84. Obligations of legal practitioner relating to handling of trust monies
(1) Every attorney or any advocate referred to in section 34(2)(b) other than a legal practitioner in the full -
time employee of the South African Human Rights Commission or the State is a state attorney or state
advocate and who practices or is deemed to practice –
(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,
(b) as a director of a practice which is a juristic entity,
must be in possession of a Fidelity Fund certificate.'
‘gross irregularity in the proceedings’ by recourse to s 22 of the Superior Courts
Act 10 of 2013.3
[7] The purpose of a certificate is to afford the public protection against
pecuniary loss due to possible misappropriation of trust funds. Section 84(1) of
the LPA thus exists in the public interest. And by prohibiting legal practitioners
from rendering legal services unless in possession of a valid certificate, the
legislature seeks to ensure that a practitioner is not let loose on an unsuspecting
member of the public.4
[8] In terms of s 93(8) 5 of the Act, conduct by ‘any person’ in contravention
of s 84(1) attracts criminal liability. The inclusion of the word ‘person’ and the
offence created by the section plainly envisages that the prohibition against
practising without a certificate is directed at legal practitioners and non -
practitioners. This is supported by the analysis of similar provisions in the
repealed Attorneys Act 53 of 1979 undertak en by the Supreme Court of Appeal
in NW Civil Contractors CC v Anton Ramaano Inc & Another 6 (NW Civil
3 S 22 provides a numerus clausus for the review of proceedings of the Magistrates’ Court and reads:
‘22 Grounds for review of proceedings of Magistrates' Court –
(1) The grounds upon which the proceedings of any Magistrates' Court may be brought under review before a
court of a Division are –
(a) absence of jurisdiction on the part of the court;
(b) interest in the cause, bias, malice or corruption on the part of the presiding judicial officer;
(c) gross irregularity in the proceedings; and
(d) the admission of inadmissible or in competent evidence or the rejection of inadmissible or incompetent
evidence.
(2) This section does not affect the provisions of any other law relating to the review of proceedings in
Magistrates' Courts.'
4 NW Civil Contractors CC v Anton Ramaano Inc & Another [2019] ZASCA 143 (14 October 2019); 2020 (3)
SA 241 (SCA) (NW Civil Contractors) para 14. See also S v Serache and Others (Review) [2025] ZANWHC 75
(6 May 2025) (Serache) para 25.
5 Quoted in relevant part, s 93(8) reads:
‘93. Offences and penalties –
…
(8) Any person who contravenes sections 84(1) or (2) or section 34 in rendering legal services –
(a) commits an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding
two years or to both such fine and imprisonment;
(b) is on conviction liable to be struck of the Roll; and
(c) is not entitled to any fee, reward or reimbursement in respect of the legal services rendered.’
6 NW Civil Contractors above n3 paras 16 and 17 in which case the court dealt with related provisi ons of the
Attorneys Act 53 of 1979, namely sections 41(1) and 83(10).
Contractors) and its endorsement of the approach adopted in Law Society of the
Cape of Good Hope v Adams7.
[9] For Mr Mnyani, the range of consequences for his conduct in his
purported representation of the accused are expressly set out in s 93(8). First,
the section ordains that the person commits an offence and is liable on
conviction to a fine or to imprisonment for a period not exceeding two years.
Second, the person is on conviction liable to be struck off the roll. And third, the
person is not entitled to any fee, reward or reimbursement in respect of the legal
services rendered.
[10] Other than the prescribed legislated consequences, s 93(8) does
not contemplate ‘a visitation of nullity’ for the impugned conduct. 8
This pronouncement was made in NW Civil Contractors – a case that implicated
an attorney who was not in possession of a valid fidelity fund certificate under
the Attorneys Act when he purportedly represented the appellant. NW Civil
Contractors was followed in S v Serache and Others 9 (Serache), a decision of
the North West Division, Mahikeng, involving a review of proceedings in
7 See Law Society of the Cape of Good Hope v Adams [2013] ZAWCHC 87; 2013 (2) SACR 480 (WCC) para
19 where the court held: ‘Section 83(10) plainly envisages that the persons at whom the prohibition is directed
are persons who could notionally obtain a fidelity fund certificate. Only an admitted practition er can obtain such
a certificate. The offence which the Act creates in respect of non -practitioners who purport to practise as
practitioners (ie without being an admitted attorney, notary or conveyancer) is contained in s 83(1). If s 83(10)
applied only to non-practitioners, it would add nothing to section 83(1) and the reference therein to the absence
of a fidelity fund certificate would in addition be nonsensical. Roux J, with whom Strydom J concurred,
acknowledged in Theledi that his interpretation was ‘ absurd’. I see no reason to adopt an interpretation which is
both nugatory and absurd. Although it may have been more felicitous for s 83(10) to have referred to any
practitioner who acts as such, I see no particular difficulty in interpreting the words “a ny person who... purports
to act as a practitioner” as referring to a practitioner practising without a fidelity fund certificate, ie a practitioner
who practices despite the fact that in terms of s 41 he or she may not lawfully do so. In a number of subse quent
cases, including cases decided by the Supreme Court of Appeal, it has been taken for granted that an attorney
who practices without a valid fidelity fund certificate contravenes section 83 (10)’ (Citations omitted).
8 In S v Mazaleni [2024] ZAECBHC 18 (22 July 2024) para 4, the court determined otherwise by unanimously
expressing the view that ‘[t]he act of practising without a fidelity fund certificate has been described by our
courts as an irregularity that is of so fundamental and serious a nature, that the proper administration of justice
and the dictates of public policy require it to be regarded as fatal to the proceedings in which it occurred.’
9 Serache n 3 paras 30 and 33.
which a practising attorney appearing as legal representative at the t rial for all
the accused, did so without being in possession of a certificate.10
[11] Both NW Civil Contractors and Serache quoted with approval Oilwell
(Pty) Ltd v Protec International Ltd and Others 11 in which Harms DP referred
to Gane’s translation of Voet, who said:
‘ “Things done contrary to the laws are not ipso jure null if the law is content with enacting a
penalty against transgressors.
…
Nay indeed there is no lack of laws which forbid, and yet do not invalidate things to the
contrary, nor impose any p enalty upon them. Hence came into vogue the famous maxim
“many things are forbidden in law to be done which yet when done holds good.” ’
[12] Harms DP elaborated:
‘This approach has been adopted in many judgments, more particularly in the leading case of
Standard Bank v Estate van Rhyn 1925 AD 266 at 274, where Solomon JA also referred to a
further statement by Voet (not as translated by Gane), that an important con sideration is
whether “greater inconveniences and impropriety would result from the rescission of what
was done, than would follow the act itself done contrary to the law ”. Voet concluded this
section with a reference to H De Groot (Grotius to some) Inleidinge 1.2.2, where the author,
dealing with the same subject, said that things done contrary to law are only void if the law so
expresses itself (“de wet sulcks uytdruckt”), or if someone’s ability to perform the act has
been curtailed, or if the deed “heeft een gestadigde onbehoorlickheid” (translated by Gane via
Voet, as “if the act performed suffers from some obvious and ingrained disgrace”, but more
correctly from some “unremitting impropriety”).’ (Underlined
emphasis added)
10 In Serache, Reddy ADJP (with Morgan AJ concurring) differed with the nullity approach adopted in the
Eastern Cape by the Bhisho High Court when he made the following observation: ‘[30] My brother Titus AJ
relies heavily on paragraph 4 in the judgment of S v Mazaleni which was delivered on 22 July 2024 in the
Eastern Cap e Division, Bhisho where Stetch J (Lowe J concurring) relied on, amongst others, NW Civil
Contractors CC v Anton Ramaano Inc. (a judgment handed down in the Limpopo Local Division by A.M.L.
Phatudi J under case number 993/2016, on 14 May 2018 ). The decisio n in NW Civil Contractors CC was,
however, overturned by the Supreme Court of Appeal on 14 October 2019 , reported as NW Civil Contractors
CC v Anton Ramaano Inc & another (1076/2018 and 1024/2018) [2019] ZASCA 143 (14 October 2019).’
11 Oilwell (Pty) Ltd v Protec International Ltd and Others [2011] ZASCA 29 (18 March 2011); 2011 (4) SA 394
(SCA).
[13] These comments are equal ly apposite in the present matter. Should the
proceedings in the trial court be set aside, a re -trial would be imminent. The
accused and the State’s witness will again have to attend court. The testimony
of the State’s witness will have to be led afresh. L egal fees will be incurred for
the accused’s newly -appointed legal representative, with perhaps further costs
incurred in obtaining a copy of the transcript of the proceedings.
[14] The synergy between s 24(1) and s 84(1) underscored by the offences and
penalties in s 93(8) of the LPA, renders it difficult to envisage that the
legislature had any intention other than that of punishing the person who did not
comply therewith.12 Against the backdrop of the compelling weight of Serache
and NW Civil Contractors, it does not seem to me that, in addition, it was also
intended by the legislature that absence of a certificate inherently occasions
nullity.
[15] It is therefore obvious that these proceedings cannot be entertained on
review within the specified stricture of sect ion 22 of the Superior Courts Act.
Practising without the required certificate is a serious breach of duty that
constitutes a criminal offence 13 and other remedies must be considered by the
Legal Practice Council and pursued to align with the intention of the legislature.
[16] In the result:
12 This sentiment is consistent with the principles of statutory interpretation drawn from authorities such as
Schierhout v Minister of Justice 1926 AD 99 ( Schierhout) and Standard Bank v Estate Van Rhyn 1925 AD 266
(Standard Bank) to which the courts in NW Civil Contractors and in Serache had regard. In Schierhout at 109
Innes CJ said: ‘It is a fundamental princip le of our law that a thing done contrary to the direct prohibition of the
law is void and of no effect.’ But that will not always be so. Whether that is so, as later cases have made clear,
will depend upon a proper construction of the legislation in questi on.’ In Standard Bank at 274, Solomon JA
explained: ‘The contention on behalf of the respondent is that when the Legislature penalises an act it impliedly
prohibits it, and that the effect of the prohibition is to render the [act] null and void, even if no declaration of
nullity is attached to the law. That, as a general proposition, may be accepted, but it is not a hard and fast rule
universally applicable. After all, what we have to get at is the intention of the Legislature, and, if we are
satisfied in any case that the Legislature did not intend to render the [act] invalid, we should not be justified in
holding that it was.’
13 See the case examples cited in NW Civil Contractors n 3 para 18.
1. The review proceedings are removed from the roll.
2. The proceedings before the magistrate are to continue to finality with
the accused being represented by his newly appointed legal
representative, or such other legal represen tative whom he may elect
to appoint; alternatively, a legal representative from Legal Aid South
Africa if the accused so qualifies for such representation.
3. The Registrar of this Court is directed to forward a copy of this
judgment for the attention of the Director of the Eastern Cape
Provincial Office of the Legal Practice Council, East London, for
investigation of the conduct of Mr Lodwa Mnyani.
____________________________
M S RUGUNANAN
JUDGE OF THE HIGH COURT
I agree.
____________________________
B METU
ACTING JUDGE OF THE HIGH COURT
Date delivered: 05 February 2026.