THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 1138/2022
In the matter between:
SOUTH AFRICAN LEGAL PRACTICE COUNCIL APPELLANT
and
LEBOHANG MICHAEL MOKHELE RESPONDENT
Neutral citation: South African Legal Practice Council v Mokhele (1138/2022)
[2023] ZASCA 177 (14 December 2023)
Coram: NICHOLLS, MABINDLA-BOQWANA and GOOSEN JJA and
MASIPA and TOKOTA AJJA
Heard: 22 November 2023
Delivered: This judgment was handed down electronically by circulation to the
parties’ legal representatives via email. It has been published on the Supreme Court
of Appeal website and released to SAFLII. The date and time for hand -down is
deemed to be at 10h00 on 14 December 2023.
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Summary: Legal Practice – s 43 of the Legal Practice Act 28 of 2014 –
whether the court may hear a matter that has become moot – the issues for
determination may engage the interests of other parties who are not before this Court
– declaratory relief sought on appeal not set out in the notice of motion – appeal
struck from the roll.
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ORDER
On appeal from: Free State Division of the High Court, Bloemfontein (Mthimunye
AJ and Mathebula J, sitting as court of appeal):
The matter is struck from the roll with no order as to costs.
JUDGMENT
Nicholls JA ( Mabindla-Boqwana and Goosen JJA and Masipa and Tokota
AJJA concurring):
[1] This is an appeal by the South African Legal Practice Council ( the LPC), a
regulatory body with oversight function over all legal practitioners and candidate
legal practitioners in the country. The LPC brought an urgent application in the
Free State Division of the High Court , Bloemfontein (the high court), against
Lebohang Michael Mokhele (Mr Mokhele), the respondent, for his suspension from
the roll of legal practitioners pending the finalisation of a disciplinary inquiry. This
was a result of the LPC’s investigation team having discovered prima facie evidence
of trust shortages, pursuant to complaints from the public.
[2] The high court (per Mthimunye A J with Mathebula J concurring) dismissed
the application and ordered the LPC to finalise its disciplinary hearing against
Mr Mokhele. It held that the difficulty for the LPC was that the relief was sought on
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an interim basis for the purposes of conducting further investigations . Leave to
appeal was granted to this Court.
[3] The application was brought by the LPC in terms of s 43 of the Legal Practice
Act 28 of 2014 (the Act) which provides:
‘Despite the provisions of this Chapter, if upon considering a complaint, a disciplinary body is
satisfied that a legal practitioner has misappropriated trust monies or is guilty of other serio us
misconduct, it must inform the Council thereof with the view to the Council instituting urgent legal
proceedings in the High Court to suspend the legal practitioner from practice and to obtain
alternative interim relief.’
[4] The LPC acknowledged that it was obliged to investigate the complaints
received against Mr Mokhele before launching the application. This is because such
an application is conditional upon a ‘disciplinary body’ being satisfied that there has
been misappropriation o f trust funds . The Act defines a disciplinary body as ‘an
investigating committee; a disciplinary committee; or an appeal tribunal . . .’. The
investigations established serious misconduct1 and evidence of a trust shortage in at
least two matters.2 On conclusion of the investigations, the LPC brought the current
application on an urgent basis.
[5] The high court held that ‘the irresistible conclusion was that there was such a
trust shortfall.’3 Despite this, it found that it was only on finalisation of the
disciplinary process that the LPC could approach the court for an order for
1 Mr Mokhele was subjected to a disciplinary committee in the case of Mr Mokoena. In the case of Mr Thulo he
entered into a settlement agreement to pay back R42 000 to Mr Thulo on condition that he withdrew his complaint to
the LPC.
2The complaints of Ms Radebe and Mr Yawa.
3 Paragraph 19 of the high court judgment.
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suspending Mr Mokhele from practice. The wording of s 43 may not necessarily
support such a conclusion.
[6] In the intervening period, the LPC has been granted an order by the high court,
suspending Mr Mokhele from the roll of legal practitioners, pending an application
for his name to be struck from the roll. The striking off application has been heard
and judgment is awaited.
[7] There is thus no longer a live controversy between the parties . This appeal
will have no practical effect. Nevertheless, the LPC has requested that we proceed
with the appeal, since there is no clarity as to the test for the suspension of a legal
practitioner, in proceedings brought in terms of s 43, not as a penalty for misconduct,
but rather as a precautionary measure pending the finalisation of disciplinary
hearings. In addition, the different divisions of the high court are not applying s 43
of the Act uniformly . The LPC calls upon this Court to determine and settle the
interpretation of s 43. In other words, the LPC wants this Court to grant a declaratory
order.
[8] Mootness is not an absolute bar to the justiciability of an issue, and a court
may entertain a matter even where no live dispute exists, if the interests of justice so
dictate. The Constitutional Court in various matters 4 has set out the factors to be
considered when deciding whether or not to hear the matter. These are:
‘(a) whether any order which it may make will have some practical effect either on the parties
or on others;
4 Normandien Farms (Pty) Limited v South African Agency for Promotion of Petroleum Exportation and Exploitation
(SOC) Limited and Others [2020] ZACC 5; 2020 (6) BCLR 748 (CC); 2020 (4) SA 409 (CC) para 50; Agribee Beef
Fund (Pty) Ltd and Another v Eastern Cape Development Agency and Another [2023] ZACC 6 para 24; 2023 (5)
BCLR 489 (CC) MEC for Education, KwaZulu -Natal v Pillay [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2)
BCLR 99 (CC) para 32.
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(b) the nature and extent of the practical effect that any possible order might have;
(c) the importance of the issue;
(d) the complexity of the issue;
(e) the fullness or otherwise of the arguments advanced; and
(f) resolving the disputes between different courts. ’
[9] There may well be conflicting judgments on the interpretation of s 43 of the
Act. Undoubtedly, this is a matter of importance for the LPC, and the public at large.
However, the issues for determination have the potential to engage the interests of
other parties who are not before this C ourt. For example , parties in the legal
profession, and even the Minister of Justice , may want to express views on s 43.
They are entitled to be cited in any matter on the interpretation of s 43 , particularly
given that the notice of motion did not formulate the declaratory order sought by the
LPC. Accordingly, this Court would be a court of first instance in respect of the
declaratory relief which was not foreshadowed in the application . This is clearly
undesirable. The correct procedure would be for the LPC to bring an application in
the high court for the appropriate relief, with all interested parties cited.
[10] Unfortunately, mention must be made of Mr Mokhele’s conduct and that of
his legal representative. Mr Mokhele did not file any heads of argument prior to the
hearing of the matter in terms of the Rules of this Court. At the commencement of
the hearing before this Court, counsel for the LPC informed the Court that heads of
argument, together with an application for condonation, were served on behalf of Mr
Mokhele the day before. Mr Mokhele, however, did not make an appearance. About
30 minutes after the proceedings before this Court had started, a legal practitioner
purporting to act for Mr Mokhele arrived at Court. He had no explanation for his
lateness and the failure to file heads of argument, and clearly had no appreciation of
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the issues in the matter. He sought to make incomprehensible submissions and to
make matters worse, proceeded to request that a costs order be granted against the
LPC because the appeal was an ab use of the process of the court . Another serious
allegation against Mr Mokhele was that t he high court, in its judgment, referred to
death threats that the complainants had received from Mr Mokhele. It also noted that
he had been less than candid with the court. This conduct ill befits an officer of court
and must be strongly deprecated.
[11] In the circumstances, the following order is made:
The matter is struck from the roll with no order as to costs.
__________________________
C E HEATON NICHOLLS
JUDGE OF APPEAL
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Appearances
For the appellant: M S Mazibuko
Instructed by: Amade Company Inc, Bloemfontein
For the respondent: T O Dlabantu
Instructed by: Dlabantu & Associates Inc, Bloemfontein