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[2026] ZAFSHC 432
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South African Legal Practice Council v Dlabantu (2025-230711) [2026] ZAFSHC 432 (10 September 2026)
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IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Not
reportable
Case
no:
2025-230711
In
the
matter
between:
SOUTH AFRICAN LEGAL PRACTICE
COUNCIL APPLICANT
And
TANDO ONGAMA DLABANTU
RESPONDENT
Neutral citation:
South
African Legal Practice Council v Dlabantu (
2025-230711
)
[2026] ZAFSHC 432
(10 September 2026)
Coram:
LOUBSER
and MOLITSOANE JJ
Heard:
4 June
2026
Delivered:
10
September 2026
Summary:
Application for security for costs –
attorney suspended from roll of legal practitioners – history of litigation
between parties.
ORDER
1
The respondent is ordered to furnish security
for the applicant’s costs in the pending main review application in an amount
to be
set and determined by the Taxing Master of the court.
2
Such security must be furnished within 20 days
after such determination.
3
The applicant is granted leave to apply to the
court for an order striking out the said application with costs, in the event
that
the respondent fails to furnish security within the stipulated period.
4
The respondent is ordered to pay the costs of
this application on the attorney and client scale, including the costs incurred
by
the applicant in the unopposed motion court on 9 October 2026.
JUDGMENT
Loubser J
(Molitsoane J concurring)
[1]
This is an application by the South African
Legal Practice Council for an order that the respondent furnish security for
its costs
in the application filed by the respondent under the above case
number 2025-230711, hereinafter called the main application. That
application
is a review application in terms of Uniform Court Rule 53 where the respondent
seeks to have the decisions taken by
the applicant to move for his suspension
as a legal practitioner reviewed and set aside. It warrants mentioning that the
main application
for a review and the present application for security for
costs were preceded by numerous other applications which caused the matter
to
become rather protracted and acrimonious, largely by the actions of the
respondent.
[2]
The history of the litigation between the
applicant and the respondent is briefly as follows: On 8 November 2024 the
respondent
was suspended from the roll of legal practitioners by two Judges of
this Division of the High Court. He was also ordered to pay
the costs of the
suspension application on an attorney and client scale. He was suspended on
grounds of gross professional misconduct
in that he practiced without a
fidelity fund certificate and in that he failed to pay the legal practitioners’
annual fees and
contributions to the fidelity fund.
[3]
The respondent then launched an application for
leave to appeal the suspension order, which application was dismissed on 28
February
2025 with costs on the attorney and client scale. Still dissatisfied,
the respondent then approached the Supreme Court of Appeal
on petition for
leave to appeal the suspension order. This petition also was dismissed with
costs on 20 June 2025 after it was
opposed by the applicant.
[4]
Soon thereafter, and on 14 July 2025 and 13
August 2025, the applicant proceeded to tax its bills of costs granted against
the respondent
in the matters referred to so far. The taxed allocaturs were subsequently
transmitted to the respondent for payment, but he failed
to pay same.
Meanwhile, on 28 July 2025, the respondent went on to apply for a re-consideration
of the High Court's dismissal of
his application for leave to appeal. This
application, however, was never issued, although the applicant had by then
already incurred
unnecessary costs. On 2 September 2025 the respondent lodged a
new reconsideration application, and on 10 December 2025 the
Supreme Court of Appeal granted the application. Before the reconsideration
could take place, the respondent, out of the blue,
launched an urgent
application in the Gauteng Division of the High Court on 5 January 2026 to
obtain orders for which he had already
made applications in this Division and
in the Supreme Court of Appeal. This urgent application, which was opposed by
the applicant,
was also dismissed with costs.
[5]
Even before the launching of the Gauteng urgent
application, the respondent brought the main rule 53 application for a review
of
the applicant’s decisions in this Court on 26 November 2025. He also wanted
his suspension to be set aside. This main application
is still pending. It is
the case for the applicant in the present application that security for its
costs in the main application
should now be ordered by the court in terms of
Uniform Court Rule 47. The application is premised on the respondent’s failure to
settle the previous costs orders and his history of conducting vexatious and
frivolous litigation against the applicant, it is
stated in the founding
affidavit. According to the applicant, the total of the costs orders already
obtained against the respondent,
amounts to the sum of R276 300, if not
more than R300 000, which sum remains unpaid.
[6]
Rule 47 mainly deals with the procedural
aspects of demanding security for costs, and not with the grounds upon which a
party is
entitled to such security from the other party. Consequently, recourse
must be had to the common law. In terms of the common law,
a court must be
satisfied that the main proceedings are vexatious or reckless or amount to an
abuse of the process of the court.
[1]
[7]
As far as vexatious proceedings are concerned,
the court has the inherent jurisdiction to prevent a vexatious action, and one
of
the ways of doing so, is to order the vexatious litigant to furnish security
for costs. This power ought to be exercised only in
exceptional circumstances.
However, other factors should also be considered in applications for security
for costs, such as the
financial inability of the plaintiff to comply with an
order of costs. In addition, an action is vexatious if it is one standing
outside the region of probability altogether and is therefore incapable of
succeeding. A court must be satisfied of this circumstance
as a certainty.
[2]
[8]
In the present matter the pending review
application of the respondent is clearly unsustainable. The decisions that form
the subject
matter of the review are decisions that predate that of the
applicant to refer the facts to the court. On the facts before us there
appears
to be no prospects of those decisions being set aside on review, as they are not
decisions in terms of PAJA and do not
have an adverse legal effect on the respondent.
This is so because a suspension or striking-off application constitutes
sui
generis
disciplinary proceedings which becomes the court’s proceedings.
These proceedings are merely referred to the court by the applicant.
When the
applicant exercises its discretion to refer the alleged offending conduct to
the court for the court to take a decision
on whether the practitioner should
be suspended or struck off as not being a fit and proper person to continue to
practice as an
attorney, the exercising of such discretion does not constitute a
decision within the ambit of administrative action as defined
in
s 1
of the
Promotion
of Administrative Justice Act 3 of 2000
.
[3]
[9]
In addition, the launching of the main
application may even be regarded as a reckless exercise by the respondent,
because at the
time of the filing thereof, the reconsideration of the
respondent’s application for leave to appeal his suspension was still pending.
[10]
In his answering affidavit, the respondent
raised a number of points
in limine
, which are all without any merit. He
further contended that he is not unable to pay the taxed allocators, but that
the applicant
is not entitled to such payment since the decision on his
application for leave to appeal or the appeal itself is still pending.
The
contention of the respondent is not persuasive. His petition for leave to
appeal his suspension order was dismissed with costs
on 20 June 2025 by the
Supreme Court of Appeal. He should thereafter have settled his taxed allocators
dated 14 July 2025 and 13
August 2025. Only on 2 September 2025 did the respondent
lodge his reconsideration application. Consequently, there was sufficient
time
for the respondent to pay his costs liabilities to the applicant, which he did
not do.
[11]
On the other side of the spectrum, the
applicant is duty-bound to protect public interest and the interest of all
legal practitioners
membered to it. It must consequently ensure that a
suspended legal practitioner is not allowed to litigate without any concern for
consequences pertaining to costs orders and to the detriment of all its legal
practitioner members, as is the case in the present
matter. It follows that the
application ought to succeed with costs on a punitive scale.
[12]
The following order is made:
1
The respondent is ordered to furnish security
for the applicant’s costs in the pending main review application in an amount
to be
set and determined by the Taxing Master of the court.
2 Such
security must be furnished within 20 days after such determination.
3 The
applicant is granted leave to apply to the court for an order striking out the
said application with costs, in the
event that the respondent fails to furnish
security within the stipulated period.
4 The respondent is ordered to pay the costs of this
application on the attorney and client scale, including the costs incurred
by
the applicant in the unopposed motion court on 9 October 2026.
P.J.
LOUBSER
JUDGE
OF THE HIGH COURT
I
concur:
P.
E. MOLITSOANE
JUDGE OF THE HIGH COURT
Appearances
For
the
applicant:
L
J B Moeng
Instructed by: P
H H Badenhorst, Bloemfontein
For
the
respondent:
T O Dlabantu in
person
[1]
Boost Sports Africa (Pty) Ltd v
South African Breweries (Pty) Ltd
[2015] ZASCA 93
;
2015 (5) SA 38
(SCA) para
16.
[2]
Fitchet v Fitchet
1987 (1) 450
(ECD) at 455B-C.
[3]
Legal Practice Council v Motlhabani
2021
JDR 1439 (NWM), Law Society of the Northern Provinces v Adekeye and Another
2018 JDR 1095 (GP) at [21]