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2026
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[2026] ZAGPPHC 253
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Cassim v Gauteng Provincial Legal Practice Council (Provincial LPC) and Others (Leave to Appeal) (2024-135318) [2026] ZAGPPHC 253 (1 April 2026)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
Number: 2024-135318
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
DATE: 1 April 2026
SIGNATURE OF JUDGE:
In
the matter between:
NEILOPAHR
CASSIM
Applicant
and
GAUTENG
PROVINCIAL LEGAL PRACTICE COUNCIL
(PROVINCIAL
LPC)
1
st
Respondent
CHAIRMAN
OF APPEALS TRIBUNAL (LPC)
2
nd
Respondent
CHAIRPERSON
OF PROVINCIAL LPC INVESTIGATING
COMMITTEE,
DR B BEKINK
3
rd
Respondent
ADVOCATE
M PHUKUBJE – MEMBER OF
PROVINCIAL
LPC INVESTIGATING COMMITTEE
4
th
Respondent
JOHN
FEDERICK SCHICKERLING
5
th
Respondent
JUDGMENT : APPLICATION
LEAVE TO APPEAL
D van den Bogert AJ
[1]
Given the number of unfortunate and mostly
inappropriate accusations of improprieties levelled against me, in my
capacity as a judge,
one would be inclined to grant leave to appeal,
to allow another court to deal with the applicant’s remarks.
That is, however,
not my job in deciding an application for leave to
appeal and it would not be in the interest of justice to do so. The
applicant’s
attack upon the judiciary is further irrelevant to
the case that I decided.
[2]
In this respect I am reminded by the
opposing respondents of the judgment of the Supreme Court of Appeal
in
Ramakatsa and Others v African
National Congress and Another
[2021] ZASCA 31
(31 March 2021)
where
the court says in paragraph 10:
“…
If
a reasonable prospect of success is established, leave to appeal
should be granted. Similarly, if there are some other compelling
reasons why the appeal should be heard, leave to appeal should be
granted. The test of reasonable prospects of success postulates
a
dispassionate decision based on the facts and the law that a court of
appeal could reasonably arrive at a conclusion different
to that of
the trial court.
”
[3]
The Supreme Court of Appeal also warns that
a sound rational basis for the conclusion that there are prospects of
success, must
be shown to exist. Those are absent in the applicant’s
application for leave.
[4]
Another important factor is this. It is
well established that an appeal lies against the order and not the
reasoning of a judgment.
In
Tecmed
Africa (Pty) Ltd v Minister of Health
[2012] 4 All SA 149
(SCA)
the Supreme Court of Appeal held:
“
First,
appeals do not lie against the reasons for the judgment but against
the substantive order of a lower court. Thus, whether
or not a court
of Appeal agrees with a lower court’s reasoning, would be of no
consequence if the result would remain the
same (Western Johannesburg
Rent Board v Ursula Mansions (Pty) Ltd
1948 (3) SA 353
(A) at 354)…
”
[5]
The largest part of the present application
for leave consists of allegations that I, as the judge, am biased and
did not comply
with my duty in terms of section 165(2) of the
Constitution. That section stipulates that courts must be independent
and apply
Constitution and the law impartially and without fear,
favour or prejudice. The applicant who decided to launch a personal
attack
upon the judiciary, did so in her application for leave to
appeal for the first time ever. She did not, at any stage during the
proceedings or prior to the hearing of the application for leave to
appeal, bring an application for my recusal.
[6]
The rather contemptuous way the court is
attacked in an application for leave to appeal does therefore not
assist the applicant.
This is so because her allegations of me not
being impartial do not flow from the judgment, but they are
complaints about conduct
that preceded the actual hearing of her
case. I did not decide on my own impartiality, and therefore no
appeal in respect of the
applicant’s ex post facto averments is
possible.
[7]
The whole of paragraph 1 and subparagraphs
1.1 to 1.14 constitutes such an attack upon me. The only recognisable
reference made
to the judgment appealed against, is where the
applicant deals with the issue of costs. The applicant misquotes and
misinterprets
paragraphs 73 up to 76 of my judgment. Instead, that is
the part where I refused to grant costs on a punitive scale against
her.
That assisted the applicant. It resulted in an order where cost
was awarded in favour of the opposing respondents against the
applicant
on a party and party scale and not on a punitive scale as
requested by the opposing respondents.
[8]
The remainder of paragraphs 1 and its
subparagraphs deal with the averment that I as a judge violated the
provisions of section
165 of the Constitution. It has nothing to do
with the judgment or order made and can never constitute grounds for
an appeal. It
is ill-considered.
[9]
That leaves several other grounds with
which I shall deal in short.
[10]
The second ground seems to be that the
court misdirected itself in finding that the applicant’s
reliance upon rule 53 of the
Uniform Rules of Court, precluded her
from relying on section 8 of the Promotion of Administrative Justice
Act, 3 of 2000 (“PAJA”).
On a proper interpretation of my
judgment, I decided that PAJA was applicable and as a natural
consequence, one will not find that
I ever found that the applicant
was precluded from relying on section 8 of PAJA. In paragraphs 6 and
7 of the judgment I say exactly
the opposite of that which the
applicant now alleges in her application for leave to appeal. This
ground for appeal is therefore
plainly wrong.
[11]
The third ground is that the court
misdirected itself in finding that the applicant’s complaint
that the fifth respondent
failed to collect money available to the
company in business rescue was hotly disputed. The application that
served before court
is a review. The notion that the fifth respondent
did not file an answering affidavit, does not take away the fact that
the functionary
at the Legal Practice Council that took the decision
not to prosecute, was faced with disputed issues. In any event, the
applicant
attacks the reasoning of the judgment and not the outcome.
Had the fifth respondent indeed opposed, it would not have made the
outcome of the review better for the applicant.
[12]
The fourth ground is that the court
misdirected itself in not finding that the fifth respondent committed
fraud when the fifth respondent
insisted that money be paid into a
trust account rather than into the account of the company in business
rescue. What served before
the court was a review and not an appeal.
I was not called upon to make any findings on whether the conduct of
the fifth respondent
constituted fraud or not.
[13]
The fifth ground is that the court
misdirected itself in not making the fifth respondent, who did not
oppose the application, liable
for the cost of the applicant. My
order makes no one liable to pay the cost of the applicant. The
applicant was directed to pay
the cost of the opposing respondents
because she was unsuccessful. No basis exists why the fifth
respondent must pay the applicant’s
costs when she is
unsuccessful.
[14]
The remainder of the application for leave
to appeal revolves around the applicant’s submissions that the
appeal involves
questions of law of importance and that there are
compelling reasons why the appeal should be heard. Absent a prospect
of success
on appeal, precedent dictates that I cannot grant leave to
appeal. A court should not be persuaded in an application for leave
to appeal to constitute an appeal court merely to debate a rather
novel legal point that will not change the outcome reached by
the
lower court.
[15]
Certainly, not in a case such as this,
where the applicant claims that the legal point is that I precluded
her from relying on section
8 of PAJA. As indicated hereinabove, I
did not. Instead, I specifically found that PAJA is applicable. The
fact that the applicant
did not want to commit herself to accepting
that it is a PAJA review, will also not change the outcome. The order
will remain.
[16]
It is therefore wrong for the applicant to
submit that the appeal involves a question of law of importance on
whether the applicant’s
reliance on rule 53 precludes reliance
on section 8. The judgment says the opposite.
[17]
At the hearing of the application for leave
to appeal, the applicant had another string to her bow. Premised on
the case of
Logbro Properties CC v
Bedderson NO and Others
2023 (2) SA 460
(SCA)
the
applicant argued that she was entitled to raise an entirely new point
of law at the hearing of the application for leave to
appeal. That
this can be done, if all the facts are before the court and they have
been properly ventilated, seems to be correct.
[18]
I understood the legal point to be that I
did not properly deal with
section 41
of the
Legal Practice Act 28 of
2014
. That section stipulates that a legal practitioner may within 30
days of being informed of the decision of the disciplinary committee
lodge an internal appeal. The appeal authority of the LPC refused to
hear the appeal because the appeal was filed late and they
claimed
not to have condonation powers.
[19]
I did not make a definite finding on
whether the appeal tribunal has condonation powers or not. I merely
mentioned with reference
to SCA case law that such proposition seems
to be correct.
[20]
My judgment then went further and I, in any
event, fully dealt with the review.
[21]
At the hearing of her leave application, I
debated with the applicant that she did not ask in her notice of
motion for a remittal
to the Appeal Tribunal should a court find that
it has in fact condonation powers. Instead the only effective relief
that she requested
is set out in paragraph 6 of her notice of motion,
namely a declarator that “
the
prima facie evidence furnished by the applicant in her complaint
under reference number S Mundau 4012/2023 and reference number
3449/2023 constitutes prima facie evidence which may lead to a
finding of professional misconduct on the part of the fifth
respondent
and consequently the matter is referred to the
Disciplinary Committee of the first respondent for termination.
”
[22]
There was no request to remit to the appeal
tribunal to reconsider its decision not to hear the appeal. Moreover,
the applicant
insisted that the review on the merits be heard. That
alone makes the condonation issue immaterial. It will therefore have
no practical
effect on her case and an appeal on that point is not
justified.
[23]
As such, this application for leave to
appeal is dismissed with cost, such cost to include the cost of
counsel on scale C.
D
VAN DEN BOGERT
ACTING JUDGE
HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION,
PRETORIA
This
judgment was handed down electronically by circulation to the
parties’ and or parties’ representatives by email
and by
being uploaded to CaseLines. The date and time for the hand down is
deemed to be 10h00 on 1 April 2026.
Appearances
Counsel
for the Applicant:
In
person
Instructed
by:
Mbazima Dickson
Attorneys
Ref.:
Mr Dickson
Counsel
for respondent:
NC
Maritz
Instructed
by:
Fourie
Fishmer Incorporated
Ref:
CP Fourie/vm/MAT8896
Date
of Hearing:
26
March 2026
Date
of Judgment:
1
April 2026