2
were, accordingly, two principal issues Wright J had to decide. First, Wright J
had to decide whether, as at 31 October 2018, Mr. Tjiroze was “duly qualified”
within the meaning of section 3 (1) (b) of the Admission of Advocates Act 74
of 1964. Second, Wright J had to satisfy himself that Mr. Tjiroze was “a fit and
proper person” to be admitted as an advocate, as required by section 3 (1) (a)
of the Admission of Advocates Act. Since fitness to practice is a continuing
requirement, Mr. Tjiroze had to show both that he was a fit and proper person
on 31 October 2018, and that he remained fit and proper at the time of his
application for admission.
2 Wright J found that Mr. Tjiroze was neither duly qualified nor fit and proper to
be admitted as an advocate. In relation to Mr. Tjiroze’s qualifications, Wright
J found that Mr. Tjiroze had failed to show, as section 3 (2) (a) (ii) of the
Admission of Advocates Act requires, that “a faculty of law ha[d] certified that
the syllabus and standard of instruction” he underwent to gain his three-year
B Juris degree from the University of Namibia “are equal or superior to those
required for the [LLB at] a university in the Republic [of South Africa]”.
3 Wright J considered material placed before him by a Dr. Mongalo of the Wits
Law School and by a Ms. Ferndale, the Registrar of the Independent Institute
of Education / Monash South Africa (“IIE MSA”). That material, on its face,
certified that Mr. Tjiroze’s B Juris degree was either the equivalent of a two-
year LLB at Monash University, or counted towards some of the credits
necessary to obtain that degree. That ambiguity aside, Wright J held that
neither Dr. Mongalo nor Ms. Ferndale had provided the required certification
– neither of them had said, in terms, that the syllabus and standard of
3
instruction leading to the award of Mr. Tjiroze’s B Juris degree “are equal or
superior to those required for the [LLB at] a university in the Republic”.
4 On Mr. Tjiroze’s fitness to be admitted, Wright J held that Mr. Tjiroze had failed
adequately to address findings that the Constitutional Court had made against
him in Tjiroze v Appeal Board of the Financial Services Board [2020] ZACC
18 (21 July 2020). In that case, the Constitutional Court found that Mr. Tjiroze
had committed an abuse of process in his pursuit of an application for leave
to appeal before that court, and had made defamatory remarks about a Judge
of this court.
5 Wright J accepted that Mr. Tjiroze expressed contrition for at least some of the
conduct criticised by the Constitutional Court. However, Wright J held that, in
dealing with the opposition to his admission application advanced by the first
respondent, the LPC, Mr. Tjiroze had demonstrated both that he had failed to
appreciate the full import of the Constitutional Court’s criticisms, and that he
had again engaged in the same sort of inappropriate conduct of which the
Constitutional Court had disapproved. In those circumstances, Wright J held
that Mr. Tjiroze was not a fit and proper person to be admitted as an advocate.
His admission application was refused (see Tjiroze v South African Legal
Practice Council [2023] ZAGPJHC 984 (18 August 2023)).
6 Aggrieved, Mr. Tjiroze applied for leave to appeal against that refusal. Wright
J (with whom Wepener J agreed) dismissed that application. Renewed
applications for leave to appeal were also dismissed by the Supreme Court of
Appeal and the Constitutional Court.
4
7 Undeterred, Mr. Tjiroze now applies to us to rescind the order refusing his
admission application. In doing so, he makes a straightforward mistake. He
attacks the conclusions reached by Wright J and Wepener J in substantially
the same terms as he advanced in his failed applications for leave to appeal.
8 Rescission is a wholly different remedy from appeal, and it will seldom be
appropriate to advance a rescission application on the same grounds as an
appeal was advanced against the same order. An appeal is a full rehearing of
the merits of a lower court’s decision. A rescission application is triggered by
a problem with the way that decision was reached. The remedies are usually
mutually exclusive, because an order that is susceptible to rescission lacks
the finality usually required to pursue an appeal (see Pitelli v Evaton Gardens
Projects CC 2010 (5) SA 171 (SCA), paragraph 20).
9 Nevertheless, in exceptional cases, the remedies have been known to
overlap, usually where an error in procedure has bled in to a court’s reasoning,
meaning that a court’s judgment can be assailed both because it is alleged to
be wrong on the merits and because it resulted from a defective process (see,
for example, Tshivhase Royal Council v Tshivase 1992 (4) SA 852 (A) at 865
A-C; Occupiers, Shulana Court, 11 Hendon Road, Yeoville, Johannesburg v
Steele [2010] 4 All SA 54 (SCA), paragraph 1). In those cases of overlap,
though, reconsideration of the order on appeal resolves all of the issues that
might be raised in a rescission application, and vice versa. Once one remedy
is exhausted, there is nothing left of the other.
10 Assuming in Mr. Tjiroze’s favour that the errors he alleged on appeal would
also have grounded a rescission application, his case has already been
5
evaluated and rejected by three courts of appeal, meaning that it is impossible
for him now to repackage the same arguments for the purposes of a rescission
application. In other words, Mr. Tjiroze’s challenge to Wright J’s decision is res
judicata, and cannot be revived by way of a rescission application.
11 Even if we were to overlook Mr. Tjiroze’s failed appeals, nothing Mr. Tjiroze
says in his application justifies rescinding Wright J’s order. Generally
speaking, a court will only rescind an order that has been granted in the
absence of a party affected by it, and which was erroneous or which that party
otherwise has good cause to set aside; an order that was taken by common
mistake; an order that bespeaks a patent error or omission that could not have
been intended by the Judge who issued it; or an order obtained by fraud or as
a result of excusable error committed by one of the parties. The point of
rescinding an order is that something went so wrong with the procedure by
which the order was obtained that the case in which the order was granted
cannot be said to have been fully and properly ventilated at first instance.
Problems of that nature justify the court of first instance rather than an appeal
court setting aside or correcting the order, because appeal courts generally
only reconsider the merits of cases argued fully and properly at first instance.
12 None of those types of problems affect the order issued in Mr. Tjiroze’s case.
In the first place, Mr. Tjiroze was both physically present and represented by
an attorney and an advocate when his admission application was argued. Mr
Tjiroze is critical of the quality of his representation. He says that it was so bad
that he might as well have been absent from court altogether. At first blush, it
seems to me that Mr. Tjiroze’s criticisms of his representation are wholly
6
unsubstantiated, but I need not evaluate them in any detail. Figurative
absence of the sort Mr. Tjiroze complains is not the sort of absence that the
principles governing rescission under the common law, rule 42 (1) (a) or rule
31 (2) (b) of the Uniform Rules of Court was meant to cover. What is meant
by absence, or non-appearance, under those principles is that a litigant “was
excluded from proceedings, or . . . not afforded a genuine opportunity to
participate on account of the proceedings being marred by procedural
irregularities” (see Zuma v Secretary of the Judicial Commission of Inquiry into
Allegations of State Capture, Corruption and Fraud in the Public Sector
Including Organs of State 2021 (11) BCLR 1263 (CC), paragraph 61). There
can be no serious suggestion that Mr. Tjiroze was absent in that sense.
13 This leaves only the possibility of rescission under rule 42 (1) (b) or 42 (1) (c)
or rescission on the basis that the order was obtained by fraud or as a result
of excusable error. Rule 42 (1) (b) provides for the correction of “an order or
judgment in which there is an ambiguity, or a patent error or omission, but only
to the extent of such ambiguity, error or omission”. During argument, Mr.
Tjiroze suggested that the court order refusing him admission fails to set out
what he must do now if he wants to practice as an advocate.
14 Wright J was under no obligation to address that issue, but a future path to
admission for Mr. Tjiroze is clear enough from the order read in light of the
reasons Wright J gave for it: Mr. Tjiroze must obtain a South African LLB
degree, or certification that the B Juris he has obtained is equivalent to a South
African LLB. He must also do what is necessary to show that, notwithstanding
the serious findings made against him by both this court and the Constitutional
7
Court, he is a fit and proper person to be admitted as an advocate. Mr. Tjiroze
needs to be able to show that he has the temperament and the judgement
necessary to enable a court to trust him to argue matters before it. The findings
made against Mr. Tjiroze are inconsistent with the conclusion that Mr. Tjiroze
possesses these qualities. Mr. Tjiroze would be well-advised to cultivate the
insight necessary to appreciate why the Constitutional Court and this court
reached the conclusions they did. I think that entails a period of reflection on
Mr. Tjiroze’s part, and perhaps a spell doing something other than participating
in litigation. But that is obviously entirely a matter for him.
15 There can be no suggestion that Mr. Tjiroze was refused admission as a result
of a mistake common to the parties. No such mistake was identified before us.
Mr. Tjiroze spent some time setting out the respects in which he believes the
order refusing his admission application was mistaken, but that is obviously
not enough.
16 There is, finally, no suggestion that the order refusing Mr. Tjiroze’s admission
was obtained by fraud, or as a result of some excusable error on his part. That
exhausts all but perhaps the most exotic grounds on which a judgment may
be rescinded, none of which are in evidence on the papers. We are satisfied
that the rescission application must fail.
17 That conclusion having been reached, the respondents are entitled to their
costs. Indeed, the general rule is that professional bodies such as the
respondents are entitled to costs on the attorney and client scale, whatever
the outcome of their approach to court. This general rule recognises the
important role the respondents play in enabling the court to fairly discharge its