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[2026] ZAGPPHC 991
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South African Legal Practice Council v Tshabangu and Another (2024-070374) [2026] ZAGPPHC 991 (4 September 2026)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 2024-070374
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
NO
DATE
04 SEPTEMBER 2026
SIGNATURE
In
the matter between:
SOUTH
AFRICAN LEGAL PRACTICE COUNCIL
Applicant
And
MDUDUZI
BRANDON TSHABANGU
First
Respondent
TSHABANGU
(M.B) INCORPORATED ATTORNEYS
Second Respondent
Heard
on: 28 July 2026
Delivered
on: 04 September 2026
This
Judgment was handed down electronically and by circulation to the
parties’ legal representatives by way of email and
shall be
uploaded on Caselines. The date for hand-down is deemed to be
04
September 2026
.
JUDGMENT
KEKANA AJ
(HOLLAND-MUTER J CONCURRING)
Introduction
[1] This is an
application brought by the Legal Practice Council (LPC) in which the
Council seeks an order striking the first Respondent
from the roll of
legal practitioners. The Respondents are opposing the application.
Background
[2]
The first Respondent was admitted as an attorney, notary and
conveyancer of this Honourable
Court on 15 August 2013, 6 February
2018 and 27 July 2020, respectively. He practices as a single
practitioner under the name Tshabangu
(M.B) Incorporated Attorneys in
and around Pretoria and Johannesburg. The Legal Practice Council
received numerous complaints regarding
the conduct of the respondent.
Kgoedi complaint
[3]
This complaint relates to, inter alia, the irregular administration
of trust funds.
The Council instructed an auditor, Philasande Nyali,
to conduct an inspection of the Respondents’ accounting records
and
practice affairs and to investigate the complaint, levelled
against the respondent.
Report
by Nyali dated
25 April 2024
The Sale
Transaction and Escrow Agreement – Cometa & BHP
(purchasers) and NKK Minerals & RO Kgosana (sellers)
[4] The report can
be summarised as follows:
4.1 a sale transaction
was concluded in terms of which the purchasers (Cometa and BHP) would
purchase certain mining rights from
the sellers (NKK Minerals and
Ronald Kgosana) utilising the services of the Respondents;
4.2 an “escrow”
agreement was concluded between the purchasers (BHP) and the first
Respondent’s firm, in terms
of which the R6 million would be
paid into the Respondents’ trust account, and would be
disbursed by the Respondents to the
sellers after fulfilment of the
conditions;
4.3 the Respondents were
required in the interim, in terms of the escrow agreement, to invest
the funds in an account contemplated
in section 86(4) of the LPA, and
the interest on those funds would accrue for the benefit of the
purchasers;
4.4 the R6 million was
indeed paid into the first Respondent’s trust account on 25
August 2022;
4.5 within less than a
month after it had been deposited, the R6 million was transferred out
of the first Respondent’s trust
account, with R3 million being
transferred to “Tshabangu Holdings”, an entity to which
the first Respondent is the
sole director;
4.6 the purchasers
confirmed that these funds were transferred out of the first
Respondent’s trust account without their knowledge
and contrary
to the terms of the escrow agreement.
Moripe Complaint
[5]
The first Respondent received a transfer instruction as far back as
April 2021 but
only managed to carry out the instruction and effect
the transfer of the property more than two and a half years later, on
27 November
2023.
Subservient to this complaint, it was found
by Council that a
year and a half before the
transfer was registered, the first Respondent had already paid out
the proceeds of the sale to the seller.
This was found to be
highly irregular, amounting to misconduct, if the
proceeds of the sale were paid out before registration of transfer.
Sibanyoni Complaint
[6]
The Legal practice council referred this complaint to the first
Respondent on 19 August
2022 and requested him to respond in writing
to the complaint by 9 September 2022. The first Respondent did not
respond to the
complaint in writing, as requested by the Legal
Practice Council.
Alleged
Contraventions
[7]
The Applicant lists numerous contraventions by the first Respondent;
these include
contravention of provisions of the
Legal
Practice Act, the LPC Rules and the Code of Conduct for Legal
Practitioners. The alleged contraventions can be summarised
as
follows:
7.1 failure to cooperate
with the
Legal practice council
in an
inspection of the firm’s accounting records and practice
affairs;
7.2. failure to keep
proper accounting records in respect of his practice;
7.3 submission of an
annual auditor’s report to the
Legal
practice council
which contained false information;
7.4 misappropriation of
trust funds;
7.5 failure to report the
existence of trust deficits in the firm’s trust banking account
to the Council;
7.6 dishonesty in the
manner in which he has conducted himself in practice and in his
engagements with the
Legal practice council
;
7.7 failure to use his
best efforts to carry out work in a competent and timely manner;
7.8 failure by the first
respondent to comply with the LPC’s requests and/or directions;
7.9 failure to comply
with the Court order of 5 November 2024;
7.10 contempt of Court.
[8]
In his response towards the complaints, the first Respondent states
that:
8.1 he had always
cooperated with the inspection, insisting that he had already
provided the information that was requested by the
auditor;
8.2 the first Respondent
admits that he did not place the funds from the escrow agreement in
the trust account contemplated in terms
of section 86(4), but instead
invested the same funds in various mining projects, allegedly at the
instruction of the seller;
8.3 on the Moripe
complaint, the first respondent states that registration of transfer
in the Deeds Office is notoriously slow,
that obtaining a clearance
certificate is cumbersome and that transfer had to take place from an
estate (in respect of which the
Respondent was not in control) to
Popa to Moripe;
8.4 on the Sibanyoni
complaint, the first respondent states that bald allegations made by
the Applicant do not pass muster.
Submission
by parties
[9]
The applicant submits that:
9.1 the first
Respondent did not cooperate with the inspection as required by the
rules in that he did not reply to emails
from Nyali which were sent
in May 2023, and that he eventually sent the auditor some information
in January 2024 is confirmation
that he was aware that same was never
shared before. Even the information he shared with Nyali was not
complete as it did not contain
the first Respondent’s business
bank statements therein; thus, he did not comply with the
inspection.
9.2 the first
Respondent's practice as an attorney presents a clear risk to the
public and that his conduct is characterised
by inherent dishonesty.
9.3 the nature and
gravity of the misconduct are such that suspension would not suffice
but rather the first respondent should
be struck off the roll of
attorneys.
[10]
The respondent contends that:
10.1
that the
Legal practice council
“overstepped the mark” and investigated matters which
were not the subject matter of complaints;
10.2
that
the investigation was procedurally flawed, that Mr Nyali was biased,
and that the first Respondent was not afforded a fair
hearing;
10.3 the trust
account was not handled properly in that monies were transferred from
the trust account but were not misappropriated;
10.4 though
there may be a transgression of the rule, such transgressions cannot
warrant ultimate sanction from striking
off the roll.
Legal
principles and analysis
[11]
O
ur
courts have consistently applied, and it has become settled law, that
applications of this nature brought in terms of section
44(1)
[1]
involves a threefold enquiry:
(a)
firstly, the court must decide whether the alleged offending conduct
has been established on
a preponderance of probabilities, which is a
factual enquiry;
(b)
secondly, it must consider whether the person concerned, in the
discretion of the court, is not
a fit and proper person to continue
practice. This involves a weighing up of the conduct complained of
against the conduct expected
of an attorney and, to this extent, is a
value judgment;
(c)
thirdly, the court must inquire whether in all the circumstances the
person in question is to
be removed from the roll of attorneys, or
whether an order of suspension from practice will suffice.
[12]
It remains undisputed that there was misappropriation of trust funds
by the first Respondent.
The first Respondent used the trust funds
for personal benefit, in that an amount of R3 million was transferred
from the trust
account into the account of his other company,
Tshabangu Holdings. It is clear from the evidence before me that
while the report
from Nyali shows that an amount of R3 million was
transferred from the trust account into the first Respondent’s
other entity,
Tshabangu Holdings, the conclusion is strong that the
first Respondent has embezzled the entire R6 million belonging to the
client.
[13]
The evidence before me is that upon cancellation of the escrow
agreement, the first Respondent
could not make R6 million available;
again, even the remaining R3 million was nowhere to be found.
Instead, the first Respondent
had to sign an acknowledgement of debt
(AOD) annexure “MBSA1” where he had to repay the whole R6
million in instalments.
The notice of payment (“Annexure
“MBSA2”) shows that he paid an amount of R350 000 on 30
June 2026 as per clause
4.1.1 of the AOD and he is expected to
thereafter pay a monthly amount of R500 000 on the first day of the
succeeding months until
the full outstanding balance is settled as
per clause 4.1.2 of the AOD.
[14]
There is evidence of dishonesty on the part of the first Respondent.
The Supreme Court of Appeal
(SCA) has also stressed that the
profession of an attorney is an honourable one and, as such, demands
complete honesty, reliability
and integrity from its members
[2]
.
[15]
As mentioned in
Summerley
v Law Society Northern Provinces
[3]
,
the fact that a court finds that an attorney is unable to administer
and conduct a trust account does not mean that striking-off
should
follow as a matter of course. The converse is, however, also correct:
it does not follow that striking-off is not an appropriate
order
[4]
.
[16]
In the present case I find the conduct of the
first Respondent to have caused irreparable damage to the
profession
and its image. Tampering with the trust funds in the manner he did
has broken the trust that should be there between
an attorney and the
public.
[17]
As regards the Moripe complaint, the first Respondent not only failed
to execute the mandate
diligently but also placed his client at risk
when he paid the seller before the transfer was registered. It could
have turned
much worse had the transfer not taken place; I find the
conduct of the first Respondent amounting to misconduct. Paying the
seller
prematurely violates professional conveyancing rules and
creates severe financial risks.
[18]
As regards Sibanyoni complaint,
the first
Respondent contends that there is n
o detail as to
when and what the amount was involved and that Mr Nyali did no more
than to sit in his office and wait for the Respondents
to feed him
with information in respect of facts that he did not care to
establish. The first Respondent adopts a wrong attitude
towards the
process. The first Respondent fails in his obligations towards
the public and those who complained of his conduct
in particular.
[19]
The first Respondent also failed to answer the correspondence
addressed to him by the Applicant
in this regard.
In
Hepple
and Others v The Law Society of the Northern Provinces
[5]
the
SCA confirmed that the proceedings in applications to strike
attorneys from the roll are not ordinary civil proceedings but
that
they are proceedings of a disciplinary nature and are
sui
generis
.
The court confirmed the duty resting on an attorney in these kinds of
proceedings in the following dictum:
“
It
follows, therefore, that where allegations and evidence are presented
against an attorney, they cannot be met with mere denials
by the
attorney concerned. If allegations are made by the Law Society and
underlying documents are provided which form the basis
of the
allegations, they cannot simply be brushed aside; the attorneys are
expected to respond meaningfully to them and to furnish
a proper
explanation of the financial discrepancies as failure to do so may
count against them.
”
[20]
Once a complaint is lodged with the LPC and the practitioner is
notified thereof and is given
an opportunity to respond; the
practitioner must be comprehensive in his or her response. A
practitioner facing discipline is expected
to "declare the
relevant facts fully and openly" from the outset. A
practitioner’s duty to cooperate is a legal
obligation. It will
be wrong for the practitioner to adopt a ‘catch me if you can
attitude’.
[21]
The first Respondent’s argument that
Legal
practice council
overstepped the mark and investigated matters
which were not the subject matter of complaints cannot be sustained
in that the Applicant
is a regulatory body that regulates the conduct
of its members; it could turn a blind eye and ignore other serious
misconduct if
those serious misconducts are found
during
the course of its investigation of the complaints.
[22]
The first respondent’s attack on the conduct of the applicant,
the auditor and his report, is found
wanting in that the process was
investigative, not adjudicative; it is the court that has the
authority to adjudicate.
[23]
I agree with the counsel for the applicant that these are not review
proceedings directed at
an administrative decision by the Legal
practice council. Before us are disciplinary proceedings concerning
the conduct of one
of its officers. Any allegation of bias on the
part of Mr Nyali or imperfections on the side of the Applicant will
have to be adjudicated
upon by this Court before making its findings,
and the first Respondent has the opportunity to present his side
before this Court.
I
t
was held in
Hassim
v Incorporated Law Society of Natal
that the Applicant, as
custos
morum
of
the profession, merely place facts before the Court for
consideration
[6]
.
[24]
I find that the Applicant was able to present evidence demonstrating
various contraventions of
the provisions of the
Legal Practice
Act, the LPC Rules and the Code of Conduct for Legal Practitioners
by
the first Respondent. The applicant was able to prove and establish
offending conduct on a preponderance of probabilities.
[25]
The second question to the inquiry that follows then is whether the
first Respondent is, in the
discretion of the court, not a fit and
proper person to continue practice. Courts, in exercising discretion,
will consider all
facts in their totality and will not consider each
issue in isolation
[7]
.
Put differently, the
facts
must be considered cumulatively, not piecemeal.
[8]
[26]
Regarding the discretion of the court, it was held in
Naylor
v Jansen
[9]
that in exercising this discretion the court is not bound by rules,
and precedents consequently have a limited value. All they
do is
indicate how other courts have exercised their discretion in the
circumstances of a particular case. Facts are never identical,
and
the exercise of a discretion need not be the same in similar cases.
If a court were bound to follow a precedent in the exercise
of its
discretion, it would mean that the court has no real discretion.
[27]
The first Respondent did not cooperate with the investigation, did
not provide the information
as directed by the court order of 5
November 2024. The first Respondent has been found to be in contempt
of court in that he did
not hand over client files; additionally, he
did not refrain from practising on his own account as ordered by the
court under the
same order of 5 November 2024. The first Respondent
has been found to have misappropriated trust funds. Misappropriation
of trust
funds is a serious contravention of the rules, and a
s
such I am of the view that the first Respondent is not fit and proper
to continue practising as an attorney of this Court.
[28]
Having found that the first Respondent is not fit and proper to
continue practising as an attorney, the
third leg of the enquiry to
be considered by this Court is whether in the circumstances the first
Respondent is to be removed from
the roll of attorneys, or whether an
order of suspension from practice will suffice.
[29]
The first Respondent was ordered to attend and complete a Practice
Management Training Course
by 5 September 2025; there was evidence
presented showing that the first Respondent has successfully attended
and completed the
course. Counsel for the Respondents argued that the
first Respondent is a young practitioner who has demonstrated
intentions to
remain relevant and succeed in the legal profession.
[30]
The first Respondent was admitted as an attorney in 2013, admitted as
a notary in 2018, and admitted
as a conveyancer of this Honourable
Court in 2020. This clearly indicates that the first Respondent wants
to grow in the profession;
as such, the court is requested to show
mercy to the first Respondent, at least by not imposing the ultimate
sanction of striking
him off the roll of attorneys.
[31]
While misappropriation of trust funds is a serious form of
misconduct, evidence before this court
shows a commitment from the
first Respondent to pay back the R6 million he embezzled, and again
there is evidence of adherence
to the signed AOD. Additionally, there
is evidence of attendance and successful completion of the Practice
Management Training
Course. Central to the first Respondent’s
case is non-compliance with the court order, which the first
Respondent attributes
to misinterpretation of the court order. This
cannot be used as an excuse for an officer of the court to disregard
orders of this
court.
[32]
As regards the Moripe and Sebanyoni complaints, while I find that
there was misconduct on the
part of the first Respondent in the
manner he handled these matters, I am of the view that the misconduct
does not warrant the
ultimate sanction of striking off the first
Respondent from the roll of attorneys.
Conclusion
[33]
The Applicant has established on a balance of probabilities that the
first Respondent has engaged
in serious professional misconduct.
While it is the view of this Court that the first Respondent is not a
fit and proper person
to continue to practise as a legal
practitioner, there is also evidence that misappropriation of trust
funds was a once-off affair
and the first Respondent has demonstrated
some remorse, acknowledged his wrongful conduct in the manner he
approached the matter.
Consequently, it is the view of this Court
that striking off is not the plausible sanction but rather a
suspension from practice
will suffice.
Costs
[34]
The Applicant approaches the Court under a public duty and not as an
ordinary litigant; Council
ought to be reimbursed to the full extent
possible. The first Respondent has failed to comply with his lawful
obligations. There
is no reason to substantiate deviation from the
general rule, and for that reason the punitive costs should be
applicable.
Order
[35]
In the circumstances, the following order is made:
1. That
Mduduzi Brandon Tshabangu is suspended from practising as a legal
practitioner for a period of three years
subject to the following
conditions;
1.1. During the period of
suspension in prayer 1 supra, the first Respondent may engage in
employment as an employee with a senior
attorney under the direct
supervision of such senior attorney with at least 15 years of
experience as an attorney. Before entering
into a contract of
employment with such attorney, the first Respondent must submit the
full particulars of the attorney to the
Legal Practitioners Council
for verification that such attorney is in good standing with the
Legal Practitioners Council.
1.2. Should the first
Respondent enter into any contract of employment with any attorney
within the period of suspension as set
out supra, the first
Respondent shall only be entitled to a remuneration as employee and
shall not practise for own account or
enter into any legal
partnership agreement with such attorney or any other attorney.
1.3 The senior attorney
supra shall every six (6) months of employment of the first
Respondent report to the Legal Practitioners
Council on the progress
and compliance with the suspensive conditions applicable on the first
Respondent during his suspension.
1.4. The first Respondent
shall continue with his obligations under the written acknowledgement
of debt signed by himself in his
capacity as the Escrow Agent with
the creditor Comota on 25 June 2026 with the continued monthly
repayment of the amount of R 500 000-00
per month on the
outstanding balance as set out in the acknowledgment of debt arising
from the infringement which resulted in the
suspension of first
Respondent.
1.5 Should the first
Respondent fail to comply with any of the conditions in the order in
prayers 2 to 5 supra, the Legal Practitioners
Council may approach
the court on the amended papers for adequate relief.
1.6 The first Respondent
and senior attorney under whose supervision the first Respondent was
employed, shall, when the term of
suspension is served, report to the
Legal Practitioners Council on the progress of the first Respondent
and whether the first Respondent
repaid the loss resulting from the
infringement which caused his suspension. The Legal Practitioners
Council may then find whether
the first Respondent is fit and proper
to practice and may consent to the first Respondent to thereafter
practice for own account.
2. That the first
Respondent is ordered to pay the costs of this application on an
attorney-and-client scale, which shall include
the reserved costs of
23 July and 5 November 2024.
ND KEKANA
ACTING JUDGE OF THE
HIGH COURT
GAUTENG DIVISION,
PRETORIA
I
concur; it is so ordered.
J HOLLAND-MUTER
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Date of hearing:
28 July 2026
Judgment
delivered:
04 September 2026
=]\\-
Appearances
Counsel for the
Applicant:
Mr. Marinus Steenkamp
Instructed by:
Rooth Wessels Attorneys
Counsel for the
Respondents:
Adv FW Botes SC
Instructed
by:
MT Makhubela Inc Attorneys
[1]
Legal Practice Act (LPA) Act No. 28 of 2014.
[2]
Vassen
v Law Society of the Cape of Good Hope
[1998] ZASCA 47
;
1998
(4) SA 532
(SCA) at 538G.
[3]
2006(5) SA 613(SCA) at para 15.
[4]
Malan v
The Law Society of the Northern Provinces
(568/2007)
[2008] ZASCA 90
at para 11.
[5]
2014
(3) All SA 408
(SCA) at para 9.
[6]
1977(2)
SA 757(A) at 767C-G.
See
also
Law Society Transvaal vs Matthews
1989(4) SA 389(T) at 393 E.
[7]
Beyers
v Pretoria Balie Raad
1966 (2) SA 593
(A) at 606B.
[8]
Malan
and Another v Law Society, Northern
Provinces
[2008] ZASCA 90
;
2009 (1) SA 216
(SCA) paras 4 – 5.
[9]
2007 (1) SA 16
(SCA) at para 21.