SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
CASE NO: 10845/23P
In the ex parte application of:
BONGEKILE ADONICA GASA APPLICANT
(Identity Number: 9[...])
ORDER
The following order is made:
The application is dismissed.
JUDGMENT
Pietersen AJ (Henriques J concurring):
Introduction
[1] The applicant, Ms Gasa, approached this court during 2023 for admission and
enrolment as a legal practitioner in terms of s 24 of the Legal Practice Act 28 of 2014
(the LPA). In her notice of motion , the applicant sought to be admitted as an
attorney. She also sought condonation for her non-compliance with rule 17.2.9 of the
South African Legal Practice Rules (the LPC Rules), and, further, that an order be
made directing that the applicant’s practical vocational training contract entered into
on 20 February 202 1 be deemed not to be void ab initio and that the service
rendered thereunder be deemed not to be ineffective, as contemplated by rule
22.1.5.2 of the LPC Rules.
The issues
[2] The main issue before us is whether the applicant is a fit and proper person to
be admitted as a legal practitioner. Flowing from this issue is the secondary issue of
what disclosure is required of an applicant for admission and what consequences
may flow from a failure to make adequate or proper disclosure in an ex parte
application for admission.
Background facts
[3] The applicant stated in her founding affidavit that she completed her legal
qualifications during 2020 and subsequently, on 10 February 2021 , entered into a
contract of practical vocational training with her principal , Mr Andre Pieter Vos (Mr
Vos), who was practising at the time as an attorney and director of Norton Rose
Fulbright (NRF) in Sandton, Gauteng (the contract). The contract was duly registered
with the Legal Practice Council ( LPC), Gauteng . The applicant recorded in her
founding affidavit that she was bound in terms of this contract to serve her principal
and to undergo practical vocational training (training) for a period of two year s. The
contract was registered on 15 March 2021 with the commencement date of 25
January 2021.
[4] It is undisputed that the applicant served her articles diligently under the
direct personal supervision of Mr Vos, as well as the direct personal supervision of
certain of Mr Vos’s co-directors of N RF, particularly when the applicant had to work
remotely during the Covid-19 pandemic. The applicant placed before this court email
remotely during the Covid-19 pandemic. The applicant placed before this court email
correspondence which contain s glowing reports from directors of N RF, which seem
to confirm that she executed her contract diligently.
[5] After completing her training on 9 February 2023, at the request of Ms Allison
Patricia Williams ( Ms Williams), who the applicant mentored with in the Durban
office, she was offered a position as a trainee associate at NRF in the intellectual
property department, pending her admission. As a consequence, she relocated from
Gauteng to KwaZulu-Natal.
[6] Of particular relevance to this judgment is the evidence produced by the
applicant in her foundin g affidavit under the heading ‘Business other than that of
candidate legal practitioner’. The applicant deals with this aspect extensively in no
less than 21 paragraphs. In these paragraphs , the applicant disclosed that she held
the position of a director of a company during her period of service as a candidate
legal practitioner in terms of the contract of practical vocational training. The
applicant, therefore, stated that she is unable to comply with rule 17.2.9 of the LPC
Rules which requires of an applicant to state that he or she held no other position
other than that of candidate legal practitioner during the period of service under a
contract of practical vocational training.
[7] As a result, the applicant accepted that the facts contained in her affidavit
may reveal a breach of rule 22.1.5.1 of the LPC Rules and she requested the court
to make a declaratory order directing that her contract of service shall not be void ab
initio, as contemplated by rule 22.1.5.2 of the LPC Rules.
[8] The applicant disclosed that she became the sole director of a company,
Garris & Projects (Pty) Ltd (Garris) and that she held a 100% ‘member’s interest’
(presumably shareholding) in this company. She was 20 years old when she became
a director of Garris and in her second year of studies at university. She remained a
director of this company during her period of training.
[9] The applicant stated that G arris was established as a domestic cleaning
service company and it operated as such on a very small basis, and continues to do
service company and it operated as such on a very small basis, and continues to do
so. She stated that the company employs three employees and that she has never
taken a dividend from the company and does not re ceive a salary. The income was
only used to pay employees’ wages and cover overhead costs.
[10] The applicant maintained in her founding affidavit that by holdi ng the position
as director of Garris , she was , in fact , not occupying an office or position as
contemplated by rules 17.2.9 and 22.1.5.1, but accepted that on a so-called ‘broad
interpretation’, it could be said that she thereby engaged in a business other than
that of a candidate legal practitioner. However, the applicant was adamant to point
out that holding this office as director in no way interfered at all with her training as a
candidate legal practitioner.
[11] The applicant stated in her founding affidavit that when she entere d into the
contract, she was not aware of the requirement tha t a candidate legal practitioner
may not hold any other position during the period of training. The applicant stated
that she did not receive any correspondence from the L PC after her contract was
registered, advising her that holding the office of directo r in any company required
the prior written approval of the LPC. It is not clear on what basis this allegation is
made and why the LPC would have been aware of the applicant’s business
ventures.
[12] The applicant went to great lengths in her founding affidavit and numerous
subsequent supplementary affidavits to explain that Garris is a small company with
operations ‘at a low scale’ and only generating ‘about R15 000.00 per month’. The
applicant said that these revenues go towards overheads. The applicant further
stated in her founding affidavit:
‘Save for my role in controlling the company’s bank account and payment effected
therefrom, I have not been actively involved in the running of the business nor did I receive
any payment for holding a position as director of the company.’
[13] The applicant also stated at paragraph 46 of the founding affidavit:
‘I do not enjoy a profit from the company. It provides support to the three employees. I have
never supplemented my candidate legal practitioner salary with money from the company.
never supplemented my candidate legal practitioner salary with money from the company.
All money received by the company was paid directly into the business accou nt and all
business related transactions were effected therein.’
[14] Further, at paragraph 53 of the founding affidavit, the applicant stated:
‘In short, I did not receive any remuneration for holding the position of director and it certainly
did not i nterfere in any way with my proper training as a candidate legal practitioner. If
anything, even though there was virtually no ‘directing’ to do, and the company operations
were so low -key, I suspect that the little experience I did gain will only stand me in good
stead in the practice of an attorney.’
[15] In an affidavit deposed to on 25 October 2023 and submitted to the LPC, Mr
Sentebale Makara ( Mr Makara), a director of NRF, stated that the applicant
approached him, during the course of her training, for advice after she encountered a
scam on social media relating to an investment. Mr Makara indicated in his affidavit
that during the course of the conversation with the applicant, she disclosed that she
was trying to generate additional income throug h i nvestments and a cleaning
business of which she was the director. It was during th is discussion that he
informed her that it was not permissible for her to have any pecuniary interest while
undergoing her training and to receive remuneration other than tha t of a candidate
legal practitioner.
[16] Mr Makara proceeded to advise the applicant during this conversation that
her directorship of her company, in which she held a 100 percent member’s interest
(shareholding), was impermissible and she could only h ave done so with the prior
written consent of the L PC. He advised her to seek the assistance of NRF’s
compliance department, and particu larly that of Mr Hugh Bissett, being NRF's
General Counsel and Head of Compliance. He was not certain whether the applicant
sought such assistance.
[17] NRF initially supported the applicant’s application for admission but
subsequently withdrew such support in November 2023. Mr Vos, in a supplementary
affidavit deposed to on 3 November 2023, stated that he ha d no direct knowledge of
the above facts disclosed by Mr Makara but assume d those facts to be correct. He
the above facts disclosed by Mr Makara but assume d those facts to be correct. He
therefore withdrew his support of the application. Ms Williams also indicated in her
supplementary affidavit that she had initially supported the application and filed an
affidavit in support thereof. However, in the initial affidavit for the applicant’s
admission, the applicant had informed her at the end of January 2023 that she had
never taken a dividend from the company nor did she receive a sa lary and that it
employed three black adult women. The applicant informed her that she played a
limited role in the running of the company, which was restricted to controlling the
bank accounts and payments effected therefrom and had not been actively invo lved
in the running of the business.
[18] Ms Williams’s support of the applicant’s admission ended upon her return
from leave in September 2023, when she became aware of the judgment in Ex Parte
Galela and Another.1 As a result of this, she then held a meeting with the applicant to
discuss her admission. It was during the subsequent meeting on 4 September 2023
that the applicant disclosed to her for the first time that the business bank statements
reflected references to ‘director wages’. The applicant w as vague in her explanation
about the payments. Ms Williams informed the applicant that she was concerned
about the subsequent disclosure , as this contradicted what she had said under oath
in her initial application for admission and what she had initially told her.
[19] As a consequence, she informed the applicant that given the judgment in
Galela (Gauteng) and her recent additional disclosure s regarding the details of the
bank statements and alleged payments relating to director wages , she could no
longer support her application for admission. Ms Williams indicated that during the
course of this conversation , she suggested to the applicant that she redo her
practical vocational training and ‘to think about matters’.
[20] On 8 September 2023, Ms Williams discussed the applicant’s admission with
the direct ors of NRF and involved the HR team. The HR team conducted an
investigation into the applicant's conduct and concluded that there was sufficient
evidence to institute disci plinary proceedings against the applicant. As a
consequence of this, Ms Williams then instructed NRF’s IT department to retrieve
emails exchanged between the appli cant and the LPC from her NRF email address.
Amongst these was an email submitted to the LPC on 13 September 2023 , asking
Amongst these was an email submitted to the LPC on 13 September 2023 , asking
the LPC for assistance regarding her non -compliance with rule 17.2.9 as well as a
draft affidavit. Ms Williams discovered that this affidavit had been sent to the LPC
without her knowledge or consent, and against her specific instruction and advice to
the applicant that she could no longer support her application for admission.
1 Ex Parte Galela and Another [2023] ZAGPPHC 716 (Galela (Gauteng)).
[21] Ms Williams indicate d that in the draft affidavit , the applicant confirmed she
made four payments between 2021 and 2022 with the reference ‘director’s wage ’
and attempted to explain these payments as covering expenses and the purchase of
various items. However, these explanations were not substantiated. Ms Williams
indicated that at the time , the applicant provided no proof to demonstrate that they
were not, in fact, director’s wages.
[22] In addi tion, Ms Williams note d that, in the applicant’s draft supplem entary
affidavit, she indicated that she was active in the business thro ughout her training
and managed the company and attended to her fiduciary duties by the creation of
weekly rosters, meetings with the managing employee and the conducting of site
inspections. This, according to Ms Williams, was in stark contrast to what the
applicant had informed her in their discussion and had said in her init ial admission
application.
[23] Ms Williams then indicate d that, pursuant to preparing for the disciplinary
proceedings, she met with counsel from the KwaZulu-Natal Bar, who advised her
that disciplinary proceedings were not warranted , as the applicant would have to
seek condonation in terms of rule 22 of the LPC Rules and that her practical
vocational contract was void ab initio . This communication to the applicant is
annexed to Ms Williams’s affidavit. It is common cause that the disciplinary
proceedings were accordingly not proceeded with, and that the applicant’s position
as a trainee associate was terminated as a consequence of the fact that her practical
vocational contract was considered void ab initio by NRF.
[24] The application was initially enrolled for hearing during July 2023 and
subsequently adjourned to October 2023. During October 2023 , the matter was
adjourned to 17 November 2023 and the application again did not proceed , as the
two supplementary affidavits of Ms Williams and Mr Makara were delivered on 13
two supplementary affidavits of Ms Williams and Mr Makara were delivered on 13
November 2023. The LPC also issued a letter of objection on 13 November 2023.
[25] Pursuant to this, the applicant then approached the LPC for its as sistance in
her admission. An investigating committee was appointed and its mandate was
‘to consider and report upon whether the errors and omissions in the applicant’s founding
affidavit signed on 14 July 2023 have been satisfactorily dealt with and her contraventions
explained to allow the LPC to issue a letter of no objection to her admission.’
[26] The investigating committee’s mandate was thus confined to dealing with the
condonation element of the application. It interviewed the applicant , as well as Ms
Williams, Mr Makara and Mr Vos and also requested bank statements from the
applicant.
[27] The recommendations of the investigating committee to the LPC can be
summarised as follows:
(a) given the seco nd set of affidavits filed by NRF and the discussion with Ms
Williams, it was difficult ‘to escape the suspicion that the Applicant tried to play down
her involvement with Garris’;
(b) the explanation that senior counsel had changed the essence of what she
said in the draft founding affidavit during the ‘heavy edit ’ of her papers may be
plausible. However, the applicant signed the affidavit, and if it is inaccurate, she is
ultimately responsible for those inaccuracies; and
(c) the applicant seems to understand that it is totally unacceptable to sign an
affidavit which is, in any manner, untrue. She apologised for her mistake in the
founding affidavit and apologised again during the interview.
[28] The committee was also requested to comment on w hether the LPC should
object to the applicant’s admission. In answer to the question as to whether the
applicant was intentionally deceitful, the comm ittee indicated that the applicant
admitted that she was mistaken in a number of respects in her founding affidavit, that
she has freely admitted her mistakes, that she had apologised and assured the
committee that she has learnt from her mistakes.
[29] The committee, interestingly enough, made the following finding in relation to
her involvement in Garris , namely ‘that she was more involved in Garris than the
her involvement in Garris , namely ‘that she was more involved in Garris than the
founding affidavit discloses ’. It was, h owever, stated that NRF's directors indicated
that they were not prejudiced by the applicant’s involvement in Garris and the
applicant’s pecuniary interest in Garris did not interfere with her training, according to
the applicant and the directors of NRF . On the issue of w hether the applicant
received any remuneration from Garris, the committee found that the answer was not
clear. Money received by Garris was, on occasion, transferred into the applicant's
personal account. However, this money, she explained, was used to purchase
supplies for Garris and she did not personally benefit from it.
[30] The committee indicated that it could not advise whether or not the applicant
contravened rule 22.1.5.1 and left it in the hands of the court to determine whether
the applicant had established good cause. The reco mmendation of the committee
was that the LPC must not formally object to the admission of the applicant and it
was for the court to decide on her suitability. In addition, the LPC was of the view
that the applicant ha d been punished sufficiently and that i f condonation is not
granted or if she is precluded from entering into a new contract, such punishment
exceeded any appropriate sanction. The LPC adopted a supine approach and
indicated that the report must be placed before the court and record ed that it has no
objection to the applicant’s admission.
[31] Pursuant to the applicant’s initial founding affidavit and in order to respond to
certain queries raised by the LPC, the a pplicant delivered a supplementary affidavit.
The applicant dealt with the aspect of condonation for her non -compliance with rule
17.2.9 and annexe d the bank statement for the business account of Garris for the
entire period of her training, being February 2021 to February 2023. The applicant
also disclosed for the first time in this su pplementary affidavit that during June/July
2022, the company received an amount of R150 000 , apparently to attend to the
waterproofing of the building to which Garris had been providing cleaning services.
[32] The applicant again reiterated that she does not receive a salary or any
remuneration from the operation of the business, but that there were five occasions
remuneration from the operation of the business, but that there were five occasions
between 2021 and 2022 where payments with the reference ‘director’s wage’ passed
through her personal Capi tec account. She indica ted that these payments we re
made to cover overhead expenses and purchase items req uired for cleaning and
were not for her personal use. Her explanation for this was that the company’s FNB
business card was lost and , as a consequence, the monies were paid into her
personal Capitec account. The applicant, therefore, again failed to substantiate these
explanations regarding the director ’s wages, similar to the position she adopted
when this was first queried by NRF during September 2023.
[33] The applicant stated that she was not aware of the director’s wage reference
until she compiled the requested financial statements. She indicated that she banked
primarily with Investec and this was the account into which her salary as a candidate
legal practitioner was paid . The Capitec account was for household expenses and
she would pay money from her Investec account into her Capitec account. She
disclosed that one Mr Roger Norris is a partner in the business and deals with the
running of the business, toge ther with Mr Ndumiso Khulusi , who, although an
employee, is a managing employee who supervises the other employees which
Garris employs. Mr Khulusi seems to be the ‘adult male employed as a cleaner ’ by
Garris, according to the draft affidavit submitted by the applicant to the LPC during
September 2023. The applicant’s allegation in her founding affidavit that Garris only
employs three black female employees was therefore not true.
[34] In this supplementary affidavit , the applicant once again indicate d that at the
time of signing the contract, she did not properly read it or apply her mind to the LPA,
as she was involved with induction training and a lot of paperwork. She indicated that
she attended to her fiduciary duties as director through one Mr Roger Norris (Mr
Norris), who would create weekly rosters, which he ran by her. She would
sometimes update these rosters over the weekend , after having a meeting with the
‘managing employee’, Mr Khulusi. The applicant stated that Mr Norris would attend
to the day-to-day running of the business and she would conduct inspections over
the weekend if Mr Norris was n ot present and have a meeting with the managing
employee.
[35] Further, a ccording to the applicant, h er now referred to as ‘ex-partner’, Mr
[35] Further, a ccording to the applicant, h er now referred to as ‘ex-partner’, Mr
Norris, managed the business from its ear ly years while she was at unive rsity and
throughout her subsequent training. She effected payments on the account when
requested to do so but Mr Norris would collect orders of cleaning supplies, purchase
uniforms and so f orth. She wo uld attend to the payment of the worker s’ salaries
every month end and pay for uniforms or oth er materials such as chlorine, brooms
and so forth. She would do so when Mr Norris was unable to attend to these himself,
as he had access to the business account.
[36] What is noteworthy in the supplementary affidavit filed by the applicant is the
fact that she attempt ed to contradict or dispute the contents of the affidavits filed by
the directors of NRF to say that she had disclosed the business in February 2023,
that it has a consistent client with an amount of R15 000 being received into the
account regularly, and that it received a large payment for a waterproofing job
subcontracted from one and the same client. She averred that this disclosure was
made in February/March 2023. Subsequently, she had a call from Mr Bissett, who
indicated that the problem could be resolved by seeking condonation and that she
should seek the assistance of the senior counsel. She indicate d that on 15 June
2023, she produced a first draft to Ms Williams and counsel and at all times was
honest and transparent about her position in the company, and the income received
by the company and that NRF did not raise any concerns.
[37] The applicant furt her state d that NRF ’s attitude toward s her subsequently
changed after Galela (Gauteng) was handed down. Despite open communication,
she was suspended from work in August 2023, and her contract of employment was
terminated on 1 November 2023 , without a disciplinary hearing. She maintain ed that
she did not have an opportunity to make full dis closure and share all documents with
NRF, as a disciplinary hearing did not proceed.
[38] In addition, she pertinently dispute d the contents of Mr Makara’s affidavit ,
specifically that his position , as recorded in the affidavit , was not correct and
pertinently indicate d that the draft supplementary affidavit was never completed,
deposed to or formally served but was a request for guidance and most of the
content is incorrect.
[39] A simple analysis of the bank statements annexed to the applicant’s
[39] A simple analysis of the bank statements annexed to the applicant’s
supplementary affidavit deposed to on 27 January 2025 raise further unanswered
questions. These bank statements were those of Garris and the applicant during her
period of training. The bank statements of Garris, which account is held with First
National Bank, indicate frequent, sometimes more than once per day, payments with
the reference ‘Directors Wage ’. The amounts also varied, mostly between R1 000
and R5 000. As the sole director of Garris, it follows that these amounts were paid to
the applicant. The applicant has elected not to deal with these payments at all.
[40] The applicant’s bank statements in respect of her personal bank account held
with Capitec Bank were also annexed to this supplementary affidavit. The applicant
advised that she ‘primarily’ banks with Investec Bank but her Capitec account was
used for ‘household expenses ’. These bank statements, over the period of the
applicant’s training, further reveal numerous credits with references such as ‘House
Contribution’, ‘Joint Transfer’ and, particularly curious, ‘Directors Wages’. As in the
case of the bank account of Garris, the ‘director’s wages’ payments were erratic and
for various amounts. These payments were not explained by the applicant.
[41] A major delay was caused when the applicant was directed by this court to
produce the annual financial statements for Garris. In a subsequent supplementary
affidavit deposed to on 29 August 2025 , the applicant stated that she only managed
to pay the accountant, given her limited financial resources, on 25 July 2025 and that
the statements were ‘done and then delivered ’ on 6 August 2025. However, the
financial statements annexed to the supplementary affidavit record that they were
signed off by the applicant on 31 March 2025 already. The applicant was therefore
not honest in her evidence regarding the availability and compiling of the company’s
financial statements.
[42] Considering the above facts it becomes necessary to first consider the proper
approach to non-disclosure in an ex parte application for admission.
Court’s approach to non-disclosure
[43] In order to ultimately determine the main issue, being whether the applicant is
a fit and proper person to be admitted as a legal practitioner, the following authorities
a fit and proper person to be admitted as a legal practitioner, the following authorities
require consideration regarding the court’s approach to non -disclosure in
applications for admission.
[44] In Ex Parte Swain this court held:2
‘As was said in Ex parte Cassim , 1970 (4) SA 476 (T), the professions of advocate and
attorney require the utmost good faith from all practitioners and aspirant practitioners; in my
opinion the applicant's failure to disclose material facts in the circumstances of the present
case was a failure to show such good faith.’
[45] More recently, in Makgolo v South African Legal Practice Council the Gauteng
High Court, Pretoria, held:3
‘His reluctance to disclose those facts, combined with the serious omissions of facts as
recorded earlier, severely and seriously impact on a character who claims to be a fit and
proper person to be admitted as a legal practitioner and to be enrolled as an attorney of this
Honourable Court. His integrity has been seriously compromised.’
[46] The Gauteng High Court, Pretoria, also considered the issue of non -
disclosure in Mukwevho v Legal Practice Council, where it was held:4
‘[12] Even if the court accepts the supplementary affidavits, the facts therein support the
contention of the LPC that the applicant is not a fit and proper person to enter the profession.
The offending conduct of making a dishonest statement is established on a preponderance
of probabilities. Good faith is a sine qua non for an application brought ex parte. When any
material facts are not disclosed, be it wilfully or negligently omitted a court may on that
ground alone dismiss an ex parte application.
[13] Honesty is considered an important prerequisite for a legal practitioner to be fit and
proper. The founding affidavit in paragraph 11.1.2 is untruthful; it emphatically sets out that
the applicant was not subjected to previous disciplinary hearings by an employer or has
pending disciplinary hearings. Considering that in the most important application, so
personal to the applicant; the start of his career, he does not take the court into his
confidence, the question begs, why would the applicant take the court into his confidence
confidence, the question begs, why would the applicant take the court into his confidence
with less “ important” applications. Comparing this conduct against the expected conduct of
an attorney, the offending conduct is conduct that can never be expected of an attorney.
[14] The attorneys profession is an honourable one and demands “ complete honesty,
reliability and integrity from its members.” I find it necessary to quote paragraph 2 5 of the
respondent’s further supplementary affidavit:
2 Ex Parte Swain 1973 (2) SA 427 (N) at 429H (confirmed on appeal in Swain v Society of Advocates,
Natal 1973 (4) SA 784 (A)).
3 Makgolo v South African Legal Practice Council [2024] ZAGPPHC 831 para 20.
4 Mukwevho v Legal Practice Council [2022] ZAGPPHC 962 paras 12-14.
“25. I have learnt from the process of this application that the integrity of a legal practitioner
goes beyond what one perceives themselves, but to what the practitioner can disclose which
is more likely to influence the Court’s judgment about integrity of a legal practitioner.”
This statement is difficult to understand, but none the less disturbing in that it shows the lack
of insight the applicant has with regard to this application. He seemingly thought that the less
he discloses the more the Court’s judgment on integrity would be influenced. This candidate
is not a fit and proper person to be admitted. The argument was that based on this
paragraph the court must find that the applicant had learnt his lesson and it was unlikely that
the conduct would be repeated. The tenure of this paragraph does not support such a
contention. There is not a single fact to sustain such argument. There also has been no
effluxion of time to have this borne out. None of the case law relied on by the applicant is
relevant to this application simply because herein dishonesty was proven.’ (Footnotes
omitted.)
[47] The Gauteng High Court, Pretoria, further considered the issue in Vatsha v
Johannesburg Society of Advocates, where it was held:5
‘This failure advertises the applicant’s inability to appreciate the sacrosanctity of full and
frank disclosure, a critical dimension of an ethical lawyer’s character.’
And on the consequences of a failure to make full disclosure, the court further held:
‘[28] The myriad pressures of lawyering are not to be regarded lightly. The perpetual
exposure to clients in distress is one of the sources of a lawyer succumbing to the
temptation to take a short cut or bend the rules because of the su bjective moral conviction
that the client deserves to triumph. This misconduct derives not from evil but from a
misplaced instinct to champion one’s client. Similarly, financial success in practice is hard
misplaced instinct to champion one’s client. Similarly, financial success in practice is hard
won and in no few examples have lawyers lost their way while traversing the valley of the
shadow of poor cash -flow by deluding themselves that a little pragmatism can be justified
because it is only temporary. Engaging with clients and opponents in a manner that avoids
conflicts of interests requires a keen and meticulous grasp of the role of a lawyer. Being able
to withstand forceful personalities who, with either charm or bombast, can overwhelm the
timid is a core attribute of the kind of character that a lawyer simply has to have. It is for
these reasons that a person to be fit and proper to bear the burdens of being an officer of
the court must have a strong character and have an instinctive inward and unseen integrity
no less than an outward and visible ostensible honesty.
[29] The clearing of the re quired threshold has not been demonstrated in this case.
Expressions of remorse might open the door, but what must be paraded is concrete
5 Vatsha v Johannesburg Society of Advocates [2023] ZAGPJHC 453 para 20.
evidence of a self -awareness of the character defect, not merely sincere regret.
Carelessness with truth and accuracy about the facts, a lack of full and frank disclosure, and
a denial of full responsibility for the deeds do not meet the test of being fit and proper to don
the mantle of a legal Practitioner.’
[48] Therefore, flowing from the reasoning of the court in Vatsha v Johannesburg
Society of Advocates , the main issue needs to be determined, being whether the
applicant is a fit and proper person for admission as a legal practitioner. The
determination of this issue is dispositive of this application and removes the need to
consider the relief in paragraphs 1 and 2 of the notice of motion , i.e. condonation.
Before condonation can be granted the court needs to be satisfied in any event that
the applicant has demonstrated ‘good cause’ and in deciding on her admission a s a
legal practitioner, that she is a ‘fit and proper’ person to be admitted as such.
What is meant by ‘fit and proper’?
[49] The Supreme Court of Appeal ( SCA) in Gaone Jack Siamisang Montshiwa
(Ex Parte Application)6 recently held as follows on what is generally meant by ‘fit and
proper’:
‘[33] … The courts in this country and elsewhere have identified certain qualities for a fit
and proper person as envisaged in the LPA. These include integrity, hard work, dignity,
honesty, fairness and respect for legal order.
[34] The expression “fit and proper” is not defined in the LPA. There is also no single test
for determination of what constitutes a fit and proper person for purposes of admission into
the legal profession. Section 5 of the LPA, however, sets out one of the objectives of the Act
as to “determine, enhance and maintain appropriate standards of professional practice and
ethical conduct of all legal practitioners and all candidate legal practitioners’. In terms of s
24(2)(c) of the LPA o nly fit and proper persons may be admitted by courts as legal
practitioners.
practitioners.
[35] In Australian Broadcasting Tribunal v Bond the court described the expression fit
and proper as follows:
“The expression “fit and proper person”, standing alone, carries no precise meaning.
It takes its meaning from context, from the activities the person is or will be engaged
in and the ends to be served by those activities. The concept of ‘fit and proper’
cannot be entirely divorced from the conduct of the person who is or will be engaging
6 Gaone Jack Siamisang Montshiwa (Ex Parte Application) [2023] ZASCA 19.
in those activities. However, depending on the nature of those activities, the question
may be whether improper conduct has occurred, whether it is likely to occur, whether
it can be assumed that it will not occur, or whether the general community will have
confidence that it will not occur. The list is not exhaustive but it indicates that, in
certain contexts, character (because it provides indication of likely future cond uct)
may be sufficient to ground a finding that a person is not fit and proper to undertake
the activities in question.”’ (Footnotes omitted.)
[50] In Kaplan v Incorporated Law Society, Transvaal ,7 the following was held
regarding the concept of ‘fit and proper’:
‘We are now in a position to look more closely at the provisions of s 15 and more particularly
at the words "fit and proper person" as used therein. They are used in relation to a person
who applies to be admitted and enrolled as an attorney. Taken by themselves they have a
variety of dictionary meanings which include in the case of "fit", adapted, adjusted, qualified
or suited to some purpose, competent and deserving; and in the case of "pr oper", excellent,
admirable, commendable, fine, goodly, of high quality, of good character or standing, honest,
respectable, worthy, fit, apt, suitable; see, eg, the Oxford English Dictionary sv "fit" and
"proper". In the case of Simango v Buitendag NO and Another 1943 WLD 85 at 92 MURRAY
J expressed the view that the term "fit and proper" did not contain two distinct ideas. In none
of the cases to which he had referred had it been suggested that "proper" connoted anything
more than "fit" or that a "fit and proper" person differed for example from a term such as
"good and sufficient cause" in the conveyance of two distinct ideas. Be that as it may, it is an
expression of wide import and its meaning will have to be determined in the context in which
it is used, both in the immediate context of the section and in the general context of the Act
it is used, both in the immediate context of the section and in the general context of the Act
having regard to the apparent scope and purpose of the Act and, within limits, its
background.’
And further:8
‘In exercising its discretion whether or not the applicant is a fit and proper person to be re -
admitted as an attorney, the Court will have to consider his personal qualities and decide
whether he is fit and proper in relation to such matters as the prestige, status and dignity of
the profession, and the integrit y, standards of professional conduct and responsibility of
practitioners, the kind of personal qualities in respect of which a Law Society has to be
satisfied in terms of s 16 as mentioned earlier in this judgment.’
7 Kaplan v Incorporated Law Society, Transvaal 1981 (2) SA 762 (T) at 782A-E
8 Ibid at 790A-B.
[51] This court further directed the ap plicant to address it on her compliance with
her fiduciary duties as director of Garris, considering what has been stated by the
applicant regarding her involvement in the company. This issue is of particular
relevance when the issue of the applicant being a fit and proper person for
admission as a legal practitioner is considered.
[52] Regarding the applicant’s fiduciary duties the applicant submitted, repeatedly,
that it is a small company and that she attended to her fiduciary duties ‘through
Roger Norr is’ and ‘through effective communication with all employees…’. This
approach falls significantly short of what is required of a director. In terms of s 76 of
the Companies Act 71 of 2008 (the Companies Act):
‘(3) …a director of a company, when acting in th at capacity, must exercise the powers and
perform the functions of director–
(a) in good faith and for a proper purpose;
(b) in the best interests of the company; and
(c) with the degree of care, skill and diligence that may reasonably be expected of a
person –
(i) carrying out the same functions in relation to the company as those carried
out by that director; and
(ii) having the general knowledge, skill and experience of that director.’
[53] The duties of directors are only partially codified in the Companies Act and the
common law remains in force. 9 The requirement that a director shall exercise his or
her powers in good faith, for a proper purpose and in the best interests of the
company is therefore anything but new.10
[54] It is so that a direc tor of a company is entitled to rely on various persons for
assistance. Section 76(5) of the Companies Act provides:
‘(5) To the extent contemplated in subsection (4) (b), a director is entitled to rely on –
(a) one or more employees of the company whom the director reasonably believes to be
reliable and competent in the functions performed or the information, opinions,
reports or statements provided;
reports or statements provided;
9 Mthimunye-Bakoro v Petroleum and Oil Corporation of South Africa (SOC) Ltd and Another 2015 (6)
SA 338 (WCC) para 61.
10 Modise and Another v Tladi Holdings (Pty) Ltd [2020] ZASCA 112; [2020] 4 All SA 670 (SCA) para
35.
(b) legal counsel, accountants, or other professional persons retained by the company,
the board or a committee as to matters involving skills or expertise that the director
reasonably believes are matters –
(i) within the particular person’s professional or expert competence; or
(ii) as to which the particular person merits confidence; or
(c) a committee of the board of which the director is not a member, unless the director
has reason to believe that the actions of the committee do not merit confidence.’
[55] Notwithstanding the assistance available to directors in terms of s 76(5) of the
Companies Act, it is clear that only some duties may properly be left to an employee
or official, as the case may be, and neither the Companies Act nor the common law
allows for a director to effectively abandon his or her duties and entrusting those
duties to a manager, as the applican t did. It remains that a director may not accept
information and advice blindly. On the contrary, a director must give it due
consideration and exercise his or her own judgment in the light thereof. A director
may not shelter behind culpable ignorance or a n alleged failure to understand the
company’s affairs.11
[56] The applicant’s abandonment of her duties as director and her explanation
that such duties were effectively delegated to Mr Norris are therefore in breach of the
duties of a director, contained in the Companies Act and the common law. 12 The
applicant’s conduct in this regard goes beyond that of mere incompetence 13 and is in
breach of her fiduciary duties as director to act with the necessary care, skill and
diligence and in good faith, in the best interests of the company for a proper purpose.
[57] An applicant for admission who has acted in breach of her fiduciary duties as
a director during her period of practical vocational training is not a fit and proper
person for admission as a legal prac titioner. Furthermore, the applicant has not only
person for admission as a legal prac titioner. Furthermore, the applicant has not only
failed to properly disclose to this court her interest in Garris but was also exposed as
11 Howard v Herrigel and Another NNO 1991 (2) SA 660 (A) at 674E -G, with reference to what
Margo J said in Fisheries Development Corporation of SA Ltd v Jorgensen and Another; Fisheries
Development Corporation of SA Ltd v AWJ Investments (Pty) Ltd and Others 1980 (4) SA 156 (W) at
166D-E.
12 South African Fabrics Ltd v Millman NO and Another 1972 (4) SA 592 (A) at 596E -F; Da Silva and
Others v CH Chemicals (Pty) Ltd [2008] ZASCA 110; 2008 (6) SA 620 (SCA) para 18.
13 Mirchandani v Unica Iron & Steel (Pty) Ltd and Unica Iron & Steel (Pty) Ltd v Mirchandani [2022]
ZASCA 58 para 13.
untruthful in her papers regarding the extent of her involvement with Garris and the
financial benefit she derived as a director of the company.
Conclusion
[58] The applicant, in our view , is not a fit and proper person to be admitted as a
legal practitioner. We do not reach this conclusion lightly and are mindful of the effect
of such conclusion on the applicant. But she is a mature young woman – counsel
advised us she is presently 30 year s old. She is by all accounts an intelligent
woman. What we cannot ignore are the following aspects, which counsel, in the best
traditions of a legal practitioner, was constrained to concede:
(a) When she signed her practical vocational contract , she did so without reading
it;
(b) She knowingly signed the supplementary affidavit prepared by counsel , after
what she terms the ‘heavy edit ’, having read it , knowing it contained inaccuracies
and contradicted what she had said in the initial founding affidavit a nd what she had
initially reported to Mr Makara and Ms Williams;
(c) That the court has had the benefit of further affidavits and bank statements as
well as the annual financial statements of Garris, which the LPC and investigating
committee did not have;
(d) That if, on an analysis of the financials and bank statements , it is found that
the applicant did derive a benefit, then she did not make a full disclosure as required
and was not honest in her disclosures on oath; and
(e) Then is not a fit and proper person to be admitted as a legal practitioner.
[59] In her supplementary affidavit deposed to on 27 January 2025 , the applicant
admitted that she did not disclose the five ‘Director Wages’ references. However, the
applicant refer red to this omission as a ‘misnomer’ and proceed ed to qualify any
payments received as not received for her ‘livelihood…save for these amounts which
occurred five odd times throughout the 24 month period ’. As indicated above, the
occurred five odd times throughout the 24 month period ’. As indicated above, the
applicant failed to deal at all with the extensive ‘Directors Wages’ and other credits
recorded in her personal bank account held with Capitec Bank.
[60] An analysis of the bank account statements of the applicant and Garris durin g
the period of training removes any doubt that may have existed regarding the
applicant’s involvement with Garris and the financial benefit she derived from the
company. The applicant failed to disclose these facts to this court.
[61] The applicant has also been found as untruthful on other material facts, such
as the availability of the company’s annual financial statements and the payment
made in respect thereof.
[62] The conduct on the facts is not one envisaged by the SCA in Siyabonga
Gugulethu Galela (Ex parte application),14 where her non-disclosure, albeit negligent,
was not intended to deceive. On those facts the SCA was satisfied that the company
concerned never opened a bank account, received no income and did not file tax
returns. The facts he rein paint a vastly different picture, particularly where it
concerns the applicant’s non -disclosure of her pecuniary interest during training and
the benefits she derived from the company. In our view , such non-disclosure by the
applicant amounted to lyin g under oath and ‘evidences a lack of honesty, integrity
and trustworthiness, all of which are essential qualities for any member of the
attorneys’ profession’.15
[63] The applicant has , therefore, failed to make a complete disclosure of her
pecuniary interest in Garris, acted in breach of her fiduciary duties as a director of
Garris and has been untruthful in her affidavits before this court, in more than one
respect. The applicant is therefore not a fit and proper person for admission as a
legal practitioner.
Order
[62] In the result, I make the following order:
The application is dismissed.
________________
PIETERSEN AJ
14 Siyabonga Gugulethu Galela (Ex parte application) [2024] ZASCA 176.
15 Ex Parte Mdyogolo 2017 (1) SA 432 (ECG) para 34.
________________
HENRIQUES J
Case Information
Dates of hearing: 17 March 2025, 04 April 2025, 14 November 2025
Date of judgment: 25 March 2026
Counsel for applicant: Mr V Mndebele
Instructed by: NGOEPE LAW INC
Applicant’s Attorneys
165 West, 4th Floor
Sandton
Johannesburg
Email: bester@ngoepelaw.co.za
Counsel for the LPC: Mr M C Ngcobo
The Legal Practice Council
KwaZulu-Natal Provincial Office
1st Floor, 200 Hoosen Haffejee Street
Pietermaritzburg
infokzn@lpc.org.za
This judgment was handed down electronically by circulation to the parties’
representatives by email, and released to SAFLII . The date and time for hand down
is deemed to be 9h00 on 25 March 2026.