SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
CASE NO: 864/2024
Not reportable
In the matter between:
THE SOUTH AFRICAN LEGAL PRACTICE
COUNCIL Applicant
And
MMATHARI MARY PHOGOJANE Respondent
Coram: Reddy J et Masike AJ
Heard: 19 September 2025
Delivered: Judgment was handed down electronically by circulation to the
parties’ legal representatives by email and released to SAFLII. The date and
time for handing down of the judgment are deemed to be the 2 March 2026 at
14:00.
Summary: Legal Practice Council – Disciplinary process – LPC approaching
court before disciplinary hearing concluded – LPC had ample grounds to
conclude within its common law authority that respondent’s case should be
referred to court before disciplinary hearing held – No oversight of trust
account- Not fit and proper to practise – Struck from roll o f attorneys – s44
Legal Practice Act 28 of 2014.
ORDER
1. The name of Mmathari Mary Phogojane is struck off the roll of legal
practitioners (attorney) of this Court.
2. The Respondent is to surrender and deliver her certificate of enrolment as
a legal practitioner to the Registrar of this Court.
3. In the event of the Respondent failing to com ply with the terms of this
order, as detailed in the previous paragraph, within two (2) weeks from
the date of this order, the sheriff of the district in which the certificate is,
be and is hereby authorised and directed to take possession of the
certificate and to hand it to the Registrar of this Honourable Court.
4. The Respondent is prohibited from handling or operating on her trust
accounts.
5. The Director of the Applicant (or their nominee) is appointed as Curator
Bonis to administer and control the trust accounts of the Respondent, with
the powers usually conferred in such orders, including the power to
collect monies due to the trust account and pay claims from trust
creditors.
6. The counterapplication is dismissed.
7. The Respondent is ordered to pay the costs of this application on the scale
as between attorney and client.
JUDGMENT
Reddy J
Introduction
[1] What engages this Court’s attention is an opposed application brought by
the South African Legal Practice Council 1 (the LPC) for an order
suspending the respondent, Mmathari Mary Phogojane (Phogojane) from
practice as a legal practitioner, alternatively, for the removal of her name
from the roll of legal practitioners.
Factual background
[2] The salient facts are simply these. Phogojane was admitted as an attorney
on 13 August 2013 and commenced practice as a sole practitioner under
the name and style of Phogojane Attorneys in Klerksdorp from 15
October 2014.
[3] The LPC avers various acts of m isconduct, professional negligence, and
statutory non-compliance against Phogojane. These allegations are set out
in fine detail in the founding papers and summari sed in the heads of
argument filed by both parties. It is well established that heads of
argument are for the benefit of the court, and we express our gratitude to
the parties for same.
1 The South African Legal Practice Council is a national statutory body , established in
terms of s4 of the Legal Practice Act 28 of 2014.
The three-stage process
[4] Applications for the suspension or removal from the roll require a three -
stage enquiry. First, the court must decide whether the alleged offending
conduct has been established on a preponderance of probabilities, which
is a factual enquiry. Second, it must consider whether the person
concerned is ‘in the discretion of the Court’, not a fit and proper person to
continue to practise. This involves weighing the conduct complained of
against the conduct expected of an attorney and, to this extent, is a value
judgment. And third, the court must enquire whether , in all the
circumstances, the person in question is to be removed from the roll of
attorneys or whether an order of suspension from practice would suffice.2
The role of the LPC
[5] The LPC approaches this Court in its capacity as the custos morum of the
legal profession. Its function is to place facts concerning legal
practitioners falling foul of the required conduct for consideration by the
LPC, which may culminate in the hearing being an enquiry into the legal
practitioner’s fitness to remain on the roll of practitioners. 3 In short, the
LPC acts as an amicus curiae .4 Given the special supervisory and
protective role that the LPC is entrusted with, it acts not as an ordinary
litigant but as a guardian of the profession, placing facts before the court
so that it may exercise its disciplinary powers.
2 . Jasat v Natal Law Society 2000 (3) SA 44 , [2000] 2 All SA 310 (SCA); Malan and
Another v Law Society of the Northern Provinces [2008] ZASCA 90 ; 2009 (1) SA
216; [2009] 1 All SA 133 (SCA) at para 10)
3 Law Society of the Northern Provinces v Le Roux 2012 (4) SA 500 (GNP) at 502 at E-F
4 Ibid
[6] In view o f the role of the LPC, it is well to remember the words of
Ponnan JA in General Council of the Bar of South Africa v Geach and
Others (Geach)5 when underscoring the responsibilities of a practitioner:
‘After all they are the beneficiaries of a rich heritage and the mantle of responsibility
that they bear as the protectors of our hard -won freedoms is without parallel. As
officers of our courts lawyers play a vital role in upholding the Constitution and
ensuring that our system of justice is both efficient and effective. It therefore stands to
reason that absolute personal integrity and scrupulous honesty are demanded of each
of them. It follows that generally a practitioner who is found to be dishonest should in
the absence of exceptional circumstanc es expect to have his name struck from the
roll.’
Phogojane’s points in limine
[7] Phogojane raised several points in limine and defences central to these;
she honed in on procedural fairness and her financial circumstances. I
turn to consider these.
Procedural Fairness
[8] Phogojane claims that this application is premature. Phogojane maintains
that she was entitled to a formal disciplinary enquiry by the LPC
preceding this application being launched. This was predicated primarily
on the absence of her being afforded proper access to a trite principle of
natural justice in the form of the audi alteram partem . This Phogojane
advances would have provided a platform for her version to be ventilated.
5 [2013] 1 All SA 393 (SCA) para 87.
[9] This contention is devoid of any merit. Our jurisprudence is replete with
precedents that underscore this conclusion. To this end, our courts have
consistently asserted that the absence of a concluded disciplinary enquiry
does not bar the court from hearing a striking off application.
[10] The LPC is not legally obliged to hold a formal disciplinary enquiry
before approaching the court, particularly where the misconduct is serious
and the facts are clear. The Court’s statutory and inherent powers to
discipline practitioners cannot be ousted merely because a prior
administrative tribunal hearing has not been held.
[11] In South African Legal Practice Council v Berkowitz and Another 6 the
following was posited as regards the need for the LPC to hold a
disciplinary enquiry:
‘[6] In this light, in the ordinary course of events, a disciplinary matter
concerning a member of the LPC will reach this court only once a full
disciplinary hearing before the LPC has been concluded. The LPA allows
two deviations from this usual sequence:
[6.1] Section 43 authorises any 'disciplinary body' of the LPC, if 'satisfied that a
legal practitioner has misappropriate trust monies or is guilty of other serious
misconduct' to refer the matter to the LPC to approach this court urgently for
the practitioner to be temporarily suspended or for other interim relief. It
is settled that an approach to court in terms of section 43 may occur before a
disciplinary hearing has been held by the LPC. In such cases, the practice is
for the ensuing process before this court then to replace the LPC's disciplinary
process and for any application for striking the practitioner from the roll to be
6 (35116/2022) [2024] ZAGPPHC 836 (15 August 2024).
decided by this court without a prior disciplinary hearing or decision of a
disciplinary committee of the LPC.
[6.2] Section 44 of the LPA determines that:
(1) The provisions of this Act [the LPA] do not derogate in any way from the
power of the High Court to adjudicate upon and make orders in respect of
matters concerning the conduct of a legal practitioner, candidate legal
practitioner or a juristic entity.
(2) Nothing contained in this Act precludes a complainant or a legal
practitioner, candidate legal practitioner or juristic entity from applying to
the High Court for appropriate relief in connection with any complaint or
charge of misconduct against a legal practitioner, candidate legal
practitioner or juristic entity or in connection with any decision of a
disciplinary body, the Ombud or the Council in connection with such
complaint or charge.
Section 44(1) makes it clear that the inherent power of this court to decide
disciplinary matters concerning a legal practitioner, which derives
from its position as ultimate custos morum of the legal profession persists
in full, despite enactment of the disciplinary powers of the LPC in the
LPA. It also confirms that the concomitant common law right of anyone
involved with a disciplinary matter concerning a legal practitioner to
approach this court for relief, likewise, remains in place. Although
probably less often, section 44 has also, lik e section 43, been relied on by
the LPC to approach this court with applications for suspension and
striking from the roll, where no disciplinary hearing of the LPC has as yet
taken place. In those cases, this court has accepted the LPC's approach and
decided the applications.
[7] In this matter the LPC, although it had conducted a disciplinary investigation
into Berkowitz' affairs, had not yet proceeded with a disciplinary
hearing before a disciplinary committee. Instead, it relied on its
residual common law authority to approach this court directly concerning
misconduct of a legal practitioner, recognised in section 44 of the LPA, before
any such disciplinary hearing had been conducted.”
[12] Section 44 of the Legal Practice Act, 28 of 2014 (the Act), properly
analysed, appears to vitiate any claim of procedural unfairness. It reads
that the provisions of the Act do not derogate 'in any way' from this
court's inherent power; and that 'nothing' in the Act precludes any natural
or juristic person with an interest in a disciplinary matter concerning a
legal practitioner from approaching this court for relief.
[13] In Wild v Legal Practice Council and Others7 the following was held:
[79] ... There is ... no indication that the common law powers of the Courts to
regulate their own process and to recognise who may bring disciplinary
proceedings before them, have been altered. One does not find a single
provision in the LPA that clearly and unequivocally indicates an intention to
alter the common law or to affect the existing status of any of the voluntary
associations in the legal profession.
[80] On the contrary, there is a clear and explicit indication in the LPA that it
assumes the continuance or retention of the common law in this
regard. Section 44(1) provides that "the provisions of this Act do not derogate
in any way" from the power of the High Court to adjudicate upon and make
orders in respect of matters concerning the conduct
of a legal practitioner. Subsection (2) makes it clear that "nothing contained in
this Act" precludes a juristic entity ... from applying to the High Court
for appropriate relief in connection with any complaint or charge of
misconduct against a legal practitioner [S]ection 44 properly
analysed, appear[s] to be a ranking clause, and not merely a linking clause. It
7 (31130/2019) [2023] ZAGPPHC 1762; 2023 (5) SA 612 (GP) (24 April 2023) at para [79]
to [80].
ranks above all the other provisions in the Act. I find it impossible to reconcile
section 44(1) and (2) with an intention to interfere with the common law
powers of the High Court The common law in this regard seems to be
acknowledged by statute, rather [than] to alter it.’
[14] The LPC has the authority to proceed against a legal practitioner in this
Court in a misconduct matter where it has neither commenced nor
concluded a formal disciplinary hearing of its own.8
[15] It would be judicious for the purposes of completeness to identify
instances where the LPC may , in prescribed circumstances, bypass an
enquiry. This is by no means a numerus clausus. For present purposes ,
three broad categories can be identified. First, in urgent matters. This
category would be defined by urgency. Included herein would be matters
where trust funds are at risk or the practitioner's conduct poses an
immediate threat to the public. Second, woul d be the instances where the
evidence is clear and unequivocal. The qualifying criteria would be where
the facts are largely undisputed or have been established in other
proceedings (e.g., a criminal conviction for fraud). Third, would be
matters where the LPC would have to exercise its inherent power, where
the conduct of a practitioner is so egregious that the LPC believes the
internal sanctions (which are limited) are insufficient and only a court
ordered striking off is appropriate.
[16] To conclude, there is no merit in the points in limine raised and the
counterapplication, which serves to embellish and regurgitate same.
Resultantly, these should be collectively dismissed.
8 South African Legal Practice Council v Mokhele (2024), Solomon v Law Society of the Cape
of Good Hope (1934).
[17] I now shift focus to the substantive application.
The Offending Conduct
[18] Extrapolating from the papers the material facts that underscore the
LPC’s relief is as follows:
Failure to submit Audit Reports and Practising without a Fidelity Fund
Certificate (FFC)
[19] It is unassailable that Phogojane failed to lodge her audit reports for the
relevant periods as required by Rule 54.24 of the Legal Practice Council
Rules, (the Rules). The failure to submit the audit reports for the period
ending February 2021 and February 2022 caused the LPC not to issue
Phogojane with an FFC for the years commencing Jan uary 2022 and
January 2023. Belatedly, Phogojane submitted the exemption applications
to the LPC in respect of the financial years ending February 2021 ,
February 2022 and February 2023. On 18 July 2023, the exemption
applications were approved.
[20] What then stands over is whether Phogojane practised without an FFC in
contravention of sections 84(1), 84(2), and 98(3)(c) of the Act. Phogojane
vehemently denies that she is a practising attorney ; her ipse dixit
contradicts this denial, leading to the implosion of her contention. To this
end, Phogojane, in her answering affidavit, deposed to on 25 June 2024,
posits that she is a registered legal practitioner practising under the name
and style of MM Phogojane Attorneys. Our courts have repeatedly
underscored th e precision and care that is obligatory in the drafting of
affidavits for the dual purpose that affidavits serve. Any attempt to
circumvent this admission is simply disingenuous. Nothing further needs
to be said on this score. There is no merit in this contention. It follows
that an FFC was peremptory, and Phogojane was not in possession of
same.
Non-payment of Annual Fees
[21] It is indisputable t hat Phogojane is in arrears regarding her annual
membership fees for the years 2018 to 2023, totalling R23,476.00.
Complaints regarding Trust Funds
[22] Two severe complaints regarding the mishandling of trust funds were
placed before this Court. I shift focus to deal with each disjunctively.
The Ramasike-Mahuma Complaint
[23] Phogojane admits to receiving R327,469.00 from a client, Ms. Reginah
Ramasike-Mahuma (Mahuma), regarding the administration of a
deceased estate. It is not in dispute that this amount was paid over to
Phogojane.
[24] Phogojane, posits the following as regards this complaint. In March 2018,
Mahuma contacted Phogojane regarding a deceased estate matter. A
meeting took place on April 22, 2018, at Clearwater Mall in Roodepoort.
On April 23, 2018, Mahuma paid R10,000.00 for consultation fees, file
opening, and legal advice. Due to a heavy workload and the urgency of
the case, specifically that a family member was allegedly selling deceased
assets, Phogojane asked a colleague, Yandisi Jamjam Mahlangatha
(Mahlangatha) to assist with the matter.
[25] Throughout April and May 2018, Phogojane noticed multiple payment
notifications fro m Mahuma. Mahlangatha claimed these funds were for
"urgent application s," drafting heads of argument, and appointing
correspondents. Mahlangatha insisted on using the firm's bank card to
withdraw cash directly rather than receiving transfers, claiming she had
too many debit orders on her own account.
[26] On 10 December 2018, while attending to a separate bail matter at the
Witbank Police Station, Phogojane was arrested for fraud. Police
informed her that she was being charged with taking client money
without providing services and that she was allegedly working with
Mahlangatha.
[27] Following her release on bail, Phogojane investigated Mahlangatha and
discovered she was not a qualified lawyer. Phogojane learned that
Mahlangatha was allegedly on the run for defrauding another individual
of R1,000,000 in Mamelod i. Phogojane states she was not shocked by
Mahuma’s complaint once she realized Mahlangatha had defrauded
several people using the firm's name.
[28] Phogojane expressed regret for the situation and committed to refunding
Mahuma. As of the date of the affidavit, negotiations were underway to
apologize to and pay Mahuma. Phogojane has stated that she "accepts,
regrets, apologizes , and takes full responsi bility and accountability to
refund the complainant".
[29] Phogojane’s self-standing response brings into sharp focus a multiplicity
of contraventions of the Act and the Rules. The management of trust
accounts is governed by strict fiduciary duties under the Act and the
Rules. Section 84(1) of the Act provides that every attorney who practises
for their own account must be in possession of an FFC. What is evident
from this complaint is that Phogojane has made an informed decision not
to be candid in her opposition , th is is best illustrated by the following
extract from the founding affidavit, which reads:
‘18.3 Attached to the complaint is proof of payments made to the Respondent ’s First
National Bank, ac count number 6[...] between the period 23 April 2018 and June
2018, totalling an amount of R 327 469.00. This account number does not correspond
with the firm’s trust account number as reflected on the Applicant’s records.’
[30] Phogojane’s retort reads:
‘27.4. Save as to admit the fact that the Respondent received the sum of R327 469.00
(Three Hundred and twenty-seven thousand four hundred and sixty-nine rand) from
the client, the balance of the averments contained in this paragraph are denied, where
the Respondent puts the Applicant to the proof thereof.’
[31] In reply the LPC posits:
‘24.1 The Applicant notes that the Respondent is denying that the account number in
which the money was rec eived does not correspond with the firm’s trust account
number as reflected on the Applicant's records, however, the Respondent fails to
furnish proof to the contrary.’
[32] On a benevolent reading of Phogojane ’s responses, the sum of
R327, 469.00 was deposited into the firm’s trust account. That being said,
Phogojane provides no pr imary evidence regarding this purported
arrangement with Mahlangatha in respect of the drawing of cash from her
trust account. Moreover , it is inexplicable how such a large sum was
withdrawn from an account of which Mahlangatha was not an account
holder. Critically, Phogojane’s affidavit makes no mention of the total
amount withdrawn, how and when it occurred. Strategically, no proof
was attached to her affidavit as regards the sequence of withdrawals , and
she would confirm the account details. Significantly, Phogojane admits to
the following:
“I then believed her and she requested her share and I gave her the business card to
withdraw her share as agreed. And she further said that the client promised to make
further payments because she needs to prepare heads of argument and other
applications.”
[33] What is conspicuous from this portion of Phogojane’s affidavit of 18 June
2021, is that there is no full disclosure as to how the R327 469.00 was to
be shared. It is inconceivable that Phogojane expected the LPC to
provide a historical statement for this amount. To my mind, the
conclusion is inescapable that Phogojane has demonstrated a pervasive
lack of candour toward the Court and intentionally sought sanctuary
under the legal phrase of ‘where the Respondent puts the Applicant to the
proof thereof.’ It was simply dishonest. This litigation strategy goes
against the grain of rehabilitation and remorse.
[34] Section 86 of the Act specifically mandates the maintenance of trust
accounts for client funds. It follows that Phogojane permitting
Mahlangatha to use the practice ’s bank card or accounts is legally
impermissible and constitutes a serious professional breach. It be ars
accentuating that legal practitioners have a personal, non -delegable duty
to account for all funds received from clients . They remain legally
responsible for financial oversight. It is indisputable that legal oversight
is obligatory in respect of trust accounts. The setting up of a trust account
has a parti cular objective. These accounts are intended for secure
transfers that leave a clear audit trail. It is trite that the failure to keep
proper accounting records is a se rious form of misconduct. Using a card
for cash withdrawals bypasses internal controls designed to prevent the
misappropriation of funds. It is unassailable that the duty of a practitioner
is to act with the utmost good faith regarding trust money.
[35] Even if the practitioner did not personally steal the money, "culpable
ignorance" or gross negligence in supervising accounts is grounds for the
LPC to seek suspension or a "striking off" from the roll. 9
The Mabyane Complaint
[36] On 2 7 November 2017, Miss Naome Ester Mabyane (Mabyane)
consulted with Phogojane and instructed her to assist in divorce
proceedings. It is common cause that a sum of R47,698.20 was deposited
into the trust account of Phogojane for this purpose. Mabyane asserts that
Phogojane failed to execute her mandate and became evasive. Several
communiqués were transmitted to Phogojane , which did not trigger a
response.
[37] In correspondence date d 15 October 2019 and 8 November 2019 , the
LPC informed Phogojane that disciplinary steps were to be instituted on
the recommendation of the Investigating Committee. Given this conduct,
the LPC claims that Phogojane inter alia failed to (i) maintain the highest
9 Summerley v Law Society, Northern Provinces 2006 (5) SA 613 (SCA).
standard of honesty and integrity, (ii) account faithfully, accurately and
timeously, for Mabyane’s funds and to retain same independently for as
long as is strictly required, (iii) execute Mabyane’s instruction in a
competent and tim ely manner and not to accept further instructions well
knowing that same will not be executed in a standard that is acceptable ,
(iv) provide Mabyane with a written account setting out details of all
amounts received in connection with the matter, appropriately explained,
particulars of disbursements and related payments, fees and other charges
debited or raised, where any fee represents an agreed fee, a statement that
such fee was agreed upon and the amount so agreed and the amount due
or owed by the client.
[38] Phogojane retorts that her electronic mail was down and she had to
personally visit the Offices of the LPC to collect the letters of complaints.
Phogojane denies that she failed to maintain the highest standard of
honesty and integrity. Phogojane, admits having not accounted faithfully,
accurately, and timeously for the funds deposited by Mabyane . She
disputes that she neglected to execute Mabyane's instructions in a
competent and timely manner. Phogojane posits that the Mabyane matter
was also handed over to Mahlangatha as she had an urgent matter to deal
with. Phogojane places store on her affidavit dated 18 June 2021, which
is of no relevance and significance as I will demonstrate.
[39] Insofar as the availability of written accounts , Phogojane claims that a
statement of account is available on request, and there is no indication
that such a request was made by Mabyane.
[40] Phogojane is nothing other than a recalcitrant litigant. A common thread
that runs through her counter application is the failure of the LPC to have
afforded her a basic tenet of natural justice , to be afforded the right to
audi alteram partem . Surprisingly, when presented with the platform
before this Court to exercise this right, Phogojane recalibrates her
approach and contends that the statement of account was not requested.
This is simply disingenuous. It serves no purpose in this live controversy
not to disclose all relevant historical accounting information to ventilate
that a proper audit trail is available. It was expected of Phogojane to have
made a frank and full disclosure. In the final analysis , these records fall
within Phogojane's implicit possession and knowledge . The failure to
disclose same speaks volumes.
[41] In respect of the substance of Mabyane’s complaint, Phogojane proffered
no explanation. Her reliance on the affidavit of 18 June 20 21 is
misplaced. The body of this affidavit refers with specificity to the
complaint lodged by M ahuma. It has no bearing on the Mabyane
complaint. What Phogojane engaged in was that, instead of confronting
the allegation, she opted to accuse the accuser.
[42] Cutting aside the verbiage, Phogojane intentionally elected not to offer an
explanation as regards Mabyane’s complaint. Her collective conduct falls
well short of the threshold of what is required of a legal practitioner in
our legal ecosystem. To conclude on the first part of the enquiry, the
offending conduct of Phogojane has been established on a preponderance
of probabilities.
The undefined standard of a fit and proper person
[43] I then move to consider if Phogojane is in the discretion of this Court is
not a fit and proper person to continue to practise. Our jurisprudence
commands that for admission into the legal profession requires an
applicant to be a fit and proper person. The phraseology fit and proper is
not statutorily defined. It follows that judicial precedent throu gh case law
and the courts’ value judgments form the fulcrum of this term. The Act
expressly requires of applicants for admission to prove they are fit and
proper.
[44] In Jasat v Natal Law Society10 the court held:
‘[12] This Court has in the past stressed that the profession of an attorney is an
honourable one and as such demands “complete honesty, reliability and
integrity from its members”. (Vassen v Law Society of the Cape of Good Hope,
supra, at 538 G). Similar statements have been made with regard to advocates.
(See for eg Kekana v Society of Advocates of South Africa, supra, at 655 G -
H.) But this does not mean that any untruthfulness however trifling will render
an attorney unfit to practise and liable to be struck off the roll. As impo rtant as
the requirements of honesty, reliability and integrity are, each case must
undoubtedly be examined in the light of its own facts and circumstances.’
[45] In General Council of the Bar of South Africa v Jiba and Others 11 it was
said that:
‘[1] The proper administration of justice may not be achieved and justice itself
may not be served unless truthful facts are placed before the courts. Legal
practitioners are a vital part of our system of justice. Their important role
includes preventing false evidence from being presented at court hearings, and
by so doing they protect judicial adjudication of disputes from contamination
by fabricated facts. As a result, the law demands from every practitioner
absolute personal integrity and scrupulous honesty.
10 2000 (3) SA 44 (SCA) at paragraph 12.
11 [2019] ZACC 23.
[2] One of the reasons for holding legal practitioners to this high ethical and moral
standard was furnished on these terms in Swain:
“[I]t is of vital importance that when the Court seeks an assurance from an
advocate that a certain set of facts exists the Court will be able to rely
implicitly on any assurance that may be given. The same standard is required
in relations between advocates and between advocates and attorneys. The
proper administration of justice could not easily survive if the professions
were not scrupulous of the truth in their dealings with each other and with the
Court.” (Footnotes omitted)’
[46] The sentiments articulated in judicial authority serves a dual purpose.
First it serves as a yardstick for the admission of practitioners and second
it is benchmark for the continuous assessment of professional suitability
of practitioners.
Assessment of Fit and Proper Standard
[47] Phogojane’s conduct is simply egregious. It falls gravely shy of the lofty
standards advanced in Jiba and similar precedents. Practising without an
FFC poses a severe risk to the public . In S v Serache and Others 12 the
importance of FFC was expressed as follows:
‘[24] There is no lis, that Koloane met the threshold of the proscribed definition of a
legal practitioner. There is no underscoring the legal synergy that co -exists
between s24 (1) and s84 of the LPA. Section 84(1) provides that “ (e)very
attorney…must be in possession of a Fid elity Fund certificate .” Section
93(8)(c) of the LPA speaks to the criminal liability for the contravention of
section 84(1) of the LPA. It is common cause that: (i) Kolaone had last been
issued with a FFC on 3 April 2014 and; (ii) he represented the accu sed for the
duration of the trial.
12 (Review) (HC12/2025) [2025] ZANWHC 75; 2025 (2) SACR 61 (NWM) (6 May 2025.
[25] The purpose of a FFC is to afford the public protection against pecuniary loss
due to possible misappropriation of trust funds. It bears re -iterating that
Koloane was last issued with a FFC on 3 April 2014. The criminal trial that is
subject to scrutiny within the purview of section 22(1)(c) of the SCA
commenced on 31 January 2025…...
[45] The Fidelity Fund for legal representatives in South Africa, the Legal
Practitioners Fidelity Fund (LPFF), plays a crucial role in safeguarding the
public from financial losses caused by the misconduct of legal practitioners.
[46] Established under the Legal Practice Act 28 of 2014 (the Legal Practice Act),
this fund acts as a financial safety net, reimbursing clients who suffer
pecuniary loss due to the theft of money or property entrusted to a legal
practitioner.
[47] This prote ction applies in specific scenarios: when the theft occurs in the
course of the practitioner’s legal practice; when the practitioner acts as an
executor or administrator in a deceased estate; or when serving as a trustee in
an insolvent estate. By compensa ting clients for losses resulting from
dishonest actions —such as the misappropriation of trust funds —the LPFF
fosters public confidence in the legal profession. It ensures that individuals can
engage legal services, whether from attorneys or advocates hold ing a FFC,
with the assurance that they are protected against financial wrongdoing. ’
(Footnotes omitted)’
[48] The failure to exercise proper oversight over a trust account constitutes a
material breach of a legal practitioner's highest duty. In Jäck v Du
Plessis13 the following salutary peremptory guidelines were provided as
regards a practitioner's trust account:
13 [2009] JOL 24391 (WCC).
‘[9] It was common cause that the monies in question were deposited in the
defendant's Trust Account by the plaintiff. Section 78(4) of the Attorneys Act
expressly provides that attorneys shall keep proper records containing the
particulars and information of any money received, held or paid into an
attorney's Tr ust Account. The defendant does not state in her answering
affidavit whose name the deposit was reflected in her Trust Account. The
inference is irresistible that it must have been reflected in the plaintiff's name,
as he deposited the money into her Trust Account.
[10] In Barlett & another v Hirschowitz Flionis [2005] 2 All SA 567 (W) [also
reported at [2005] JOL 14311 (W) - Ed] Schwartzman J, referred to the expert
evidence led in that case in regard to the duties of an attorney in so far as they
relate to trust accounts at 579g:
"[36] Faris has practised as an accountant for 42 years. Since 1972 he has conducted
forensic audits on behalf of the Transvaal Law Society. For the past 16 years
he has acted as a consultant to examiners of the Law Society and has assisted
in setting the bookkeeping admission examination for candidate attorneys. His
expertise was not in issue. In his expert summary, and in evidence, he dealt in
detail with an attorney's duties in relation to his or her trust account. He
confirmed the following extracts from his summary:
36.1 'The conduct and duties of an attorney in relation to his trust account is
governed and regulated by Statute, the rules of the Law Society, the purpose of
the account and the generally accepted principles of general practice
management.'
36.2 'Subject to a limitation that does not apply in this action, money in a trust
account is not, by Statute, the property of the attorney. For this reason, an
especially high standard of care is expected of practising attorneys in regard to
the opening, keeping and management of a trust account.'
the opening, keeping and management of a trust account.'
36.3 'Money in a trust account may be that of a client or third party. It is common
practice that, without notice, a person other than a client may pay money into
an attorney's trust account. It also happens that funds may be deposited into an
attorney's trust account where the actual depositor's name is not disclosed.
This can happen when the deposit is made electronically or when payment is
made by a bank cheque or, as in this case, by way of an interbank clearance
voucher, and the deposit slip does not identify the person paying in the money.'
36.4 'When money is deposited into a trust account it should be credited to the
client's account and dealt with strictly in a ccordance with the client 's
instructions. When the identity of the client is not known or the purpose of the
deposit is not known, the deposit should be credited to a Trust Suspense
account until the identity of the trust creditor is established, whereafte r the
money should be dealt with in accordance with the trust creditor's
instructions.'
36.5 'In terms of the Law Society Rule 69.5, it is an attorney's duty to ensure that
all withdrawals from the trust are only made for or on behalf of the trust
creditor.'
36.6 'Attorneys should be alert to the possibility that their trust account is being
used for money laundering purposes. This is governed by Statute, but was not
so governed in 1999.'"
[11] At 585 (she) the learned Judge stated the following:
"[52] Money deposited into an attorney's trust account is not his or her property -
see section 78(7) of the Attorneys Act 53 of 1979. Faris gave an
uncontradicted account of the duties and responsibilities of an attorney in
relation to money in a trust account (see paragraph [36] hereof). In relation to
such money, an attorney must deal with it strictly in accordance with the
client's instructions" (my emphasis).
[12] In Hirschowitz Flionis v Bartless & anoth er 2006 (3) SA 575 (SCA) Howie P
stated the following at 589C-F:
"[30] On the contrary, there are a number of considerations which, in my
opinion, compel the conclusion that Flionis was indeed subject to the
legal duty under discussion. First and foremos t, the appellant, as
recipient, was a firm of practising attorneys. As such, it proclaimed to
the public that it possessed the expertise and trustworthiness to deal
with trust money reasonably and responsibly. Second, Bartlett relied on
that and particular ly on the fact that the money would be in the
appellant's trust account until he instructed otherwise. Faris' exposition
of an attorney's obligations improperly managing a trust account
demonstrates that Bartlett's reliance on the money being safe in a tru st
account was reasonable, even if, as I shall point out, his failure to
communicate with Flionis was not. Third, even where an attorney
discovers an anonymous and unexplained deposit, it requires minimal
management to transfer the money to a trust suspens e account. It is
then a task of no difficulty to trace the depositor with the aid of the
firm's own bank. After that, one need merely leave the money where it
is until receipt of instructions by or on behalf of the depositor or the
person for whose benefit the deposit was made. Fourth, unreasonable
conduct that might put the money at risk would, as a reasonable
foreseeability, cause loss to the depositor or beneficiary. The legal
convictions of the community would undoubtedly clamour for liability
to exist in these circumstances."
[13] In Du Preez & others v Zwiegers 2008 (4) SA 627 (SCA) [also reported at
[2008] JOL 21577 (SCA) - Ed], the Supreme Court of Appeal again dealt with
the question of attorney's trust accounts and the duty of attorneys in this
regard. At 632A-F the learned President stated the following:
"[19] I find it difficult to see what possible scope there is for the contention that
there was no legal duty in this situation. An attorney is under a legal duty to
there was no legal duty in this situation. An attorney is under a legal duty to
deal with trust account mon ey in such a way that loss is not negligently
caused, inter alia, to the depositor. That was decided in Hirschowitz Flionis v
Bartlett and Another . No acceptable reasons have been advanced which take
this case outside the scope of what was there found in regard to unlawfulness.
[20] The Court below did not make any express finding that the respondent had
been negligent but there are indications in the judgment that the court
considered his failure to make certain enquiries to have been remiss. What the
court went on to say, however, would mean the same even if the respondent
had been found negligent. What the court in effect held was that as long as a
depositor is silent as to what is to be done with the money deposited in an
attorney's trust account the latter can , as long as there are specific
instructions from the attorney 's client as to that money , negligently, but still
lawfully, ignore what the depositor might want done with the money . The
proposition's mere articulation warrants its rejection.
[21] It was also wrong, in my view, to hold, as a corollary, that it was up to the
depositor to look after its own interests. Vis-à-vis the depositor the attorney is
not just another member of the public who is entitled to expect fellow ci tizens
to take reasonable care to protect their own interests. An attorney into whose
trust account money is paid owes a duty to the depositor even if the depositor
is not existing client of the practice. That duty, at the risk of repetition , is to
deal with the money in such a way that harm is not negligently caused to the
depositor among others" (my emphasis).
[49] In the present matter , Phogojane’s failure to account accurately and
timeously to trust creditors despite receiving the funds points inevitably
to misappropriation, which is a dishonest act and a far cry from
negligence. Moreover, Phogojane has intentionally failed to take this
Court completely into her confidence in respect of trust account activity.
Moreover, Phogojane practised without a FFC.
[50] In General Council of the Bar of South Africa v Jiba and Others 14, the
apex court and Supreme Court of Appeal (SCA) accentuated that legal
14 Ibid.
practitioners must be individuals of absolute personal integrity and
scrupulous honesty. An assessment of Phogojane’s leads to the direct
conclusion that she has dismissably failed to meet this standard.
[51] In view of the totality of the infractions, I find that Phogojane is no longer
a fit and proper person to practise as a legal practitioner. Her collective
conduct is nothing other than unprofessional, dishonest, and unworthy.
Sanction
[52] These leads neatly into the final jurisdictional requirement as set out in
Jasat. The LPC seeks the removal of Phogojane’s name from the roll.
Phogojane counters by contending that suspension would be a more
appropriate sanction.
[53] Phogojane claims that she should be allowed to lead evidence of
rehabilitation and notes that criminal proceedings for fraud were finalized
without a guilty finding. The standard of proof in disciplinary
proceedings is a balance of probabilities, distinct from the criminal
standard. Phogojane’s own admission regarding the outstanding refund
of R327,469.00 serves as sufficient proof of misconduct regarding trust
funds. The shrouded secrecy surrounding the Mabyane complaint bolsters
the latter finding. Moreover, no proper accounti ng records as regards
trust creditors have been ventilated.
[54] Phogojane pleads exceptional financial and personal circumstances.
While personal circumstances are relevant, they cannot override the need
to protect the public. Financial hardship cannot serve as a valid defence
for the misappropriation of trust funds or non -compliance with statutory
auditing requirements.
[55] In Summerley v Law Society of the Northern Provinces15, the SCA held
that where dishonesty is involved, removal from the roll is generally the
appropriate sanction. Suspension is typically reserved for cases of
negligence or where there is a reasonable prospect of rehabilitation that
does not endanger the public. The misappropriation of trust funds is,
barring exceptional circumstances, a defect of character that is
incompatible with the privilege of remaining on the roll. There are no
exceptional circumstances present here.
[56] Consequently, the only appropriate sanction is the removal of
Phogojane’s name from the roll of legal practitioners. It follows that the
LPC had adequate grounds upon which to conclude, within its residual
common law authority to do so, that Phogojane’s case should be referred
to court before a disciplinary hearing had been held.
Costs
[57] The general rule in matters of this kin d is that the LPC is entitled to its
costs. Having found that Phogojane conduct has been egregious, a
punitive order of costs is appropriate .16 Furthermore, it should be
emphasized that the LPC should not be out of pocket for simply fulfilling
a duty as custos morum.
Order
15 [2006] ZASCA 59
16 Law Society of Northern Provinces v Dube (874/2011) 2012 ZASCA paragraph 33.
[58] Resultantly, I make following order is made:
1. The name of Mmathari Mary Phogojane is struck off the roll of legal
practitioners (attorneys) of this Court.
2. The Respondent is to surrender and deliver her certificate of enrolment as
a legal practitioner to the Registrar of this Court.
3. In the event of t he Respondent failing to comply with the terms of this
order, as detailed in the previous paragraph, within two (2) weeks from
the date of this order, the sheriff of the district in which the certificate is,
be and is hereby authorised and directed to take possession of the
certificate and to hand it to the Registrar of this Honourable Court.
4. The Respondent is prohibited from handling or operating on her trust
accounts.
5. The Director of the Applicant (or their nominee) is appointed as Curator
Bonis to administer and control the trust accounts of the Respondent, with
the powers usually conferred in such orders, including the power to
collect monies due to the trust account and pay claims from trust
creditors.
6. The counterapplication is dismissed.
7. The Respondent is ordered to pay the costs of this application on the scale
as between attorney and client.
__________________________________
A REDDY
JUDGE OF THE HIGH COURT OF SOUTH AFRICA,
NORTH WEST DIVISION, MAHIKENG
I agree
__________________________________
T MASIKE
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Appearances:
For the applicant : Advocate G Seleka
Instructed by: Damons Margadie Richardson Attorneys
C/o Maponya Attorneys
Mahikeng
For the respondent: Ms Y Omar
Instructed by: M H P Malesa Attorneys
C/o R S Tau Attorneys
Mahikeng