PROFESSION

Issue: The judge was considering an application for leave to appeal when one of the cases cited could not be found in the Juta or LexisNexis reports, nor on SAFLII. The judge requested the two law researchers employed at the Pietermaritzburg High Court to peruse the supplementary notice of appeal and to provide all the cited cases. Of the nine cases referred to and cited, only two could be found to exist, albeit that the citation of one was incorrect. The judge had serious concerns and wanted to afford counsel an opportunity to provide the authorities she relied on. Counsel contended that the case references were provided to her by the “article clerk” at the attorney firm and that she had not had sight of the cases as she was “overbooked” and working under a lot of pressure.

Response: The candidate attorney appeared before the judge and denied having used an artificial intelligence application such as ChatGPT to assist with her research. The proprietor of the firm appeared in court and indicated that it was not possible to obtain copies of the cases the judge required as the librarian wanted him to pay for the copies, which he was not willing to do. He indicated that they needed time to provide the court with the relevant copies of the cases cited. The judge indicated to him that it would be difficult to do so, as the cases did not exist.

Discussion: The proprietor unfortunately had no understanding of how serious the actions of counsel and the candidate attorney were, and that it simply could not be brushed aside as an oversight or mistake, especially when there had been no full disclosure of the source of the cases cited and where there had been an apparent failure of supervision of the candidate attorney’s work. A court should also be able to assume and rely on counsel’s tacit representation that the authorities cited and relied upon do actually exist. Counsel blindly relied on authorities provided to her by the candidate attorney, without checking the references when addressing the judge at the initial hearing. The attorney firm issued the supplementary notice of appeal, drafted by a candidate legal practitioner, without anyone, or at least her principal, checking if it was properly done and if the authorities cited were indeed correct, or did in fact exist.

Findings: In this age of instant gratification, this incident serves as a timely reminder to, at least, the lawyers involved in this matter, that when it comes to legal research, the efficiency of modem technology still needs to be infused with a dose of good old-fashioned independent reading. Courts expect lawyers to bring a legally-independent and questioning mind to bear on, especially, novel legal matters, and certainly not to merely repeat in parrot-fashion, the unverified research of a chatbot. In this judge’s view, relying on AI technologies when doing legal research is irresponsible and downright unprofessional.

Order: The applicant’s application for leave to appeal is dismissed with costs, such costs to be on scale C. The costs incurred in respect of the additional appearances due to the case citations are to be paid by Surendra Singh and Associates (de bonis propriis) on scale A. The registrar is requested to send a copy of the judgment to the Legal Practice Council.

BEZUIDENHOUT J

Facts and issue: The South African Legal Practice Council (LPC) successfully applied for the striking of the applicant, Mr Mokhele from the roll of legal practitioners. Mr Mokhele brought an application for leave to appeal the striking judgment, which was opposed by the LPC. The latter then brought this current interlocutory application for Mr Mokhele to pay security for costs in respect of the application for leave to appeal. The application for leave to appeal the striking judgment and the application for security for costs are preceded by numerous other applications which caused the matter to become rather protracted and acrimonious, largely from Mr Mokhele’s side.

Discussion: The striking judgment dealt in detail with the various grounds raised by Mr Mokhele in opposition to the striking off application. He has not placed before the court a cogent answer to the LPC’s contentions in support of its application for security. The LPC indicated that it appears from the sheriff’s returns of service that it did not appear that Mr Mokhele is able to pay the amounts due by him to the LPC in respect of the taxed costs. Apart from alleging that the LPC did not prove that he has no unencumbered property and that he is unable to pay the amount due, Mr Mokhele gave no answer refuting the assertions of the LPC. He did not indicate if he, in fact, does have assets or resources, what such resources are and whether that would enable him to pay his debts. The sheriff’s returns are prima facie proof of the truth of their content and will be accepted by the court, unless challenged and proved otherwise.

Findings: The prejudice to the LPC, who acts in the public interest is substantial. It is currently out of pocket to the tune of over R500,000. It is obliged to oppose what appears to be an unsustainable application for leave to appeal. Even if the application were to be granted, Mr Mokhele will then proceed to prosecute the appeal, causing the LPC to incur further costs, without much prospect of recovering same. The door will not be shut to Mr Mokhele, as he accuses the LPC of doing. He may continue with his application as soon as the LPC’s costs are secured.

Order: The applicant, Mokhele, is ordered to furnish security to the respondent, the South African Legal Practice Council, in the sum of R300,000.

Facts: Lieutenant Colonel O’Brien, a former military judge in the South African National Defence Force (SANDF), challenged the constitutionality of specific provisions in the Defence Act 42 of 2002 and the Military Discipline Supplementary Measures Act 16 of 1999 (MDSMA). These provisions governed the appointment, tenure, oversight and removal of military judges. The challenged provisions included: Sections 101 and 102 of the Defence Act, which permitted executive authorities to convene boards of inquiry into military judges and their rulings; and section 15 of the MDSMA, which allowed the assignment of military judges for renewable periods, raising concerns about security of tenure. Section 17 of the MDSMA granted the Minister, acting on the recommendation of the Adjutant General, the authority to remove military judges without the requirement of independent oversight. O’Brien argued that these provisions allowed undue executive influence over military courts, compromising their independence and violating the constitutional principle of judicial independence.

Appeal: O’Brien’s application was dismissed by the High Court, and the Supreme Court of Appeal held that the matter was moot, since O’Brien had already retired from the SANDF. He now seeks leave to appeal to the Constitutional Court. The central question is whether the impugned provisions in the Defence Act and MDSMA compromised the independence of military courts, thereby infringing on section 165 of the Constitution, which enshrines judicial independence. Specifically, whether military courts, as recognized under section 166(e) of the Constitution, were sufficiently independent to ensure the fair administration of justice; and whether the challenged provisions permitted undue executive interference in the functioning of military courts.

Discussion: The guarantee of judicial independence ought to be afforded to military courts. This is particularly so where the military courts have jurisdiction over criminal cases, including cases such as rape and sexual assault. These courts must be given the same independence guarantees as ordinary courts determining such matters. The internationally accepted standard of independence that must be afforded to these courts requires independence in relation to the Executive, and in relation to the military hierarchy. There must be safeguards against actual and perceived partiality, and in the appointment of military judges. Security of tenure is key, and this excludes fixed-term contracts. There must be clear protection against external pressures and an ability to decide matters without any restrictions, improper influence, inducements, pressure, threats or interference, direct or indirect, from any quarter or for any reason. A further key requirement is actual and perceived independence. Judicial decisions must not be subject to revision other than by a superior court.  Removal or suspension of judges may only be on account of gross misconduct incompatible with judicial office, or for mental incapacity. Lastly, there must be appropriate suspension and disciplinary procedures for judges, prescribed by law, which includes judicial officers being entitled to guarantees of a fair hearing and provisions for an independent review of decisions of disciplinary or removal hearings. The question is whether the relevant provisions of the MDSMA and Defence Act have succeeded in doing so.

Findings: The impugned provisions undermined judicial independence, a core principle enshrined in the Constitution. Sections 101 and 102 of the Defence Act improperly allows executive boards of inquiry to investigate military judges and their rulings, breaching the separation of powers and exposing judges to executive influence. Section 15 of the MDSMA is deemed unconstitutional for failing to guarantee security of tenure, as the practice of renewable assignments created the potential for undue pressure on military judges, compromising their impartiality. Regarding section 17 of the MDSMA, allowing the Minister, upon the Adjutant General’s recommendation, to remove military judges without an independent inquiry is unconstitutional, as it provides insufficient safeguards against arbitrary or improper removal. The provisions, collectively, fails to meet the constitutional standard of independence required for military courts, which must remain free from actual or perceived executive interference, to uphold public confidence in their impartiality and integrity.

Order: Leave to appeal is granted. The appeal is upheld. The order of the Supreme Court of Appeal is set aside to the extent that that the court dismissed the applicant’s appeal against the High Court’s refusal to grant the declarations of statutory invalidity sought by the applicant in his counter-application in the High Court. Sections 101 and 102 of the Defence Act, and sections 15 and 17 of the MDSMA, are declared unconstitutional. The declarations of invalidity are suspended for 24 months to allow Parliament to enact remedial legislation.

MAJIEDT J (unanimous)

Facts: Ms Wild has been a practicing advocate for 42 years, and is currently a member of the third respondent, the Bisho Society of Advocates (BSA). In 2017, the Eastern Cape Society of Advocates (ECSA) issued an application in the High Court seeking an order that the name of Ms Wild be struck from the roll of advocates. The application was brought in terms of section 7(4) of the Admission of Advocates Act 74 of 1964 (the AAA) and common-law. The Legal Practice Act 28 of 2014 (the LPA) came into effect in 2018 and in 2019 the chairperson of the Legal Practice Council (LPC) issued an “advisory note” to all advocates regarding transitional arrangements.

Appeal: The appellant appeals against a decision of the High Court which dismissed her application to review and set aside the decision by the LPC to issue an advisory note to all advocates regarding disciplinary proceedings involving advocates. Alternatively, she sought a declaration that the LPC did not take any decision recorded in the advisory note. Counsel for the appellant submitted that the proper interpretation of section 116(2) of the LPA is that the LPC takes over from the ECSA in the striking-off application against Ms Wild.

The advisory note: It is the provisions of section 116 of the LPA that changed the status quo and brought in a new dispensation, not the advisory note. The advisory note was merely restating and explaining how the transition to the new dispensation was to be carried out. In effect, its purpose was to preserve the status quo as regards striking-off applications already instituted by bodies like the ECSA and the GCB. There are no new procedures initiated in the advisory note. The advisory note did not change any law or procedure contained in the LPA. Ms Wild is already facing a striking-off application. It is that application that has the capacity to affect her rights, not the advisory note. Ms Wild failed to demonstrate that the advisory note adversely affects her rights and that it has a direct, external legal effect. Accordingly, it does not constitute administrative action and is not reviewable under the Promotion of Administrative Justice Act 3 of 2000 (PAJA).

Section 116(2): The LPA does not detract from the position of Advocates’ Societies, who are still custodes morum over the profession of advocates, neither does the LPA intend to afford exclusive jurisdiction to the LPC in this regard. The restructuring brought about by the LPA did not change the common-law as far as inherent powers of the courts over legal practitioners are concerned. Had there been an intention to bring about such a change, such would have been expressly stated. There is no provision in the LPA that clearly and unequivocally indicates an intention to alter the common-law standing of Advocates’ Societies, arising from the inherent jurisdiction of the courts to consider striking-off applications. Instead, section 44(2) of the LPA confirms and affords rights to any person who has locus standi to apply to the high court “for appropriate relief in connection with any complaint or charge of misconduct against a legal practitioner.” The long-standing recognition by courts of the locus standi under the common-law to apply for the striking-off of advocates is not ousted by the LPA. On the contrary, it is preserved.

Order: The appeal is dismissed with costs including the costs of two counsel.

MOKGOHLOA JA (KEIGHTLEY JA, BAARTMAN AJA, COPPIN AJA and DOLAMO AJA concurring)

Facts: Ms Galela launched an ex parte application for her admission as a legal practitioner to the High Court in 2023. She attached a statement of her academic record from the University of the Witwatersrand (Wits) which reflected that she had qualified for a Bachelor of Arts degree in 2018 and had graduated in 2019. The academic record for the LLB reflected that she had qualified in 2020. It did not reflect that she had graduated. At the time Ms Galela commenced her admission application, she was employed at Werksmans Attorneys, having entered into and completed a practical vocational training contract (PVT contract) with a director at the law firm. The LPC drew Ms Galela’s attention to the fact that she had not attached her LLB certificate to the application and that she had stated under oath that she did not occupy any other position, nor was she engaged in any other business whatsoever other than that of a candidate legal practitioner. The LPC pointed out that according to the CIPC website, Ms Galela was listed as having held an active directorship in an enterprise during her period of service as a candidate legal practitioner.

Appeal: The High Court held that Ms Galela (appellant) was not a fit and proper person to be admitted as a legal practitioner. The primary issue for determination is this: what information was Ms Galela obliged to disclose in her ex parte application for admission, and what consequences flow from the lack of full disclosure?

Discussion: Regarding her failure to attach the LLB certificate, Ms Galela explained that Wits does not issue degree certificates to graduates who are in arrears with their fees. Nonetheless, the academic transcript is proof that she has met the necessary academic requirements for the BA Law and LLB degrees. Ms Galela stated that she was not a recalcitrant debtor, rather she was unable to pay the large sum of more than R143,000 which was owing to Wits. Significantly, the amount has now been settled and there is no longer an outstanding amount owing to Wits. Regarding her directorship in the company incorporated to build a student app, Ms Galela attributes her failure to obtain prior written consent to her belief, genuinely held, that her directorship of Varsigator had automatically ceased once it stopped trading in 2017. She therefore was of the opinion that when she entered into a PVT contract in 2021, the company had been defunct for some four years.

Findings: Ms Galela’s supplementary affidavit has set out a proper explanation as to why she did not disclose that she was a director of Varsigator. In short, the business failed. As a result, Varsigator never opened a bank account, received no income and did not file tax returns. Her non-disclosure, albeit negligent, was not intended to deceive, nor did the directorship interfere with her proper training. There are sufficient grounds for this court to condone her non-compliance with Rule 22.1.5. In addition, the court is satisfied that her reason for non-payment of her university tuition is not due to any dishonesty on her part but rather a genuine inability to pay her fees at the time. These have now been paid in full. In the circumstances the court is of the view that Ms Galela is a fit and proper person to be admitted to the legal profession.

Order: The appeal against the order of the High Court is upheld. That order is replaced with an order that: applicant has shown good cause for contravening Rule 22.1.5.1 of the Legal Practice Council Rules, and it is declared that the practical vocational training contract entered into between the applicant and Dr Eric Levenstein is not void ab initio, and that the service rendered thereunder is effective, as contemplated under Rule 22.1.5.2 of the LPC rules; the applicant be admitted to practise as a legal practitioner and is authorised to be enrolled as an attorney; and the LPC is authorised to enrol the applicant as a legal practitioner.

NICHOLLS JA (MOLEFE JA, SMITH JA, UNTERHALTER JA and DOLAMO AJA concurring)

Facts: Mr Smith lodged four claims with the Fund for the reimbursement of the loss that he suffered as a result of the theft committed by Mr Stephens of money that Mr Smith entrusted to the firm, represented by Mr Stephens, in the course of his duties in the firm. After the Fund had rejected Mr Smith’s claims, he instituted an action in the High Court against the respondent, the Legal Practitioners’ Fidelity Fund Board (the Board). The High Court dismissed all four claims. Mr Smith alleged that he entrusted R1 million to the firm. In claim 2 he alleged that a firm of solicitors paid £50,000 (R900,000) for his benefit into the trust account. He alleged that the payment was entrusted to the firm. In claim 3 he alleged that he entrusted R4 million to the firm and in claim 4 he alleged that he entrusted R2,7 million to the firm. Mr Smith alleged that, at all relevant times, the firm was represented by Mr Stephens; it came to his knowledge in March 2018 that Mr Stephens had stolen the sums of money referred to in each claim; and that, as a result of the theft, he suffered pecuniary loss of R1 million, R900,000, R4 million and R2,7 million respectively.

Appeal: Mr Smith appeals to this court against the finding of the High Court. He appeals against the finding that the Legal Practitioners’ Fidelity Fund is not liable to reimburse him in respect of the loss that he suffered as a result of the theft of the money. The High Court made that finding on the basis that Mr Smith instructed the firm, represented by Mr Stephens, to invest the money on his behalf.

Discussion: In each of the claims, Mr Smith suffered pecuniary loss as a result of theft committed by Mr Stephens, the firm’s employee, of money that Mr Smith paid or caused to be paid into the trust account and that such payment was made to Mr Stephens in the course of his duties in the firm. The question to be answered is whether Mr Smith entrusted the money to the firm or Mr Stephens when he paid or caused it to be paid into the trust account. Subject to section 47(1) of the Attorneys Act 53 of 1979, the Fund must reimburse Mr Smith if he entrusted those payments to the firm or Mr Stephens. The converse is that Mr Smith would not be entitled to reimbursement if those payments did not amount to entrustment. The fact that money is paid into a trust account does not necessarily satisfy the first element, as such payment does not mean that it is trust money. In the case of an attorney and his or her client, one must look at the intention of the client when he or she placed the money in the attorney’s possession to determine the issue of entrustment.

Findings: The High Court was correct in its finding that Mr Smith failed to prove that he entrusted the R1 million to Mr Stephens or the firm. When Mr Smith paid the R1 million into the trust account, he knew that the money would soon thereafter be paid to Flake Ice. He intended the money to be paid to Flake Ice in the discharge of his obligation in terms of the loan agreement. The evidence shows that the payment of the R4 million into the trust account was immaterial, since Mr Smith’s intention was to purchase 66% of the CP Crane Hire claim with that amount. All he intended to do when he paid the money into the trust account was to discharge his obligations in terms of the agreement to purchase that percentage of the claim. The High Court found that Mr Smith did not entrust the R2,7 million to the firm or Mr Stephens when he paid that amount into the trust account. It found that he invested in Sun-Down Red with the intention of achieving a profit. The evidence shows that at no stage did Mr Smith intend the R2,7 million to be held by the firm for any length of time. He understood the agreement to be that, on receipt of the money, the firm would transfer the money to Sun-Down Red, which would purchase the book debt from Trudon. The court agrees that Mr Smith established that he entrusted the R900,000 to the firm. It does not agree that the entrustment came to an end in June 2017. By then the money which had been entrusted to the firm had already been stolen by Mr Stephens.

Order: The appeal is allowed in part. The order of the High Court is set aside and substituted. The plaintiff’s first, third and fourth claims are dismissed. The plaintiff’s second claim is upheld. The defendant shall pay R900,000 to the plaintiff, with interest thereon at the rate of 10,25% per annum.

BLOEM AJA (MOCUMIE JA, MABINDLA-BOQWANA JA, MOLOPA-SETHOSA AJA and MOLITSOANE AJA concurring)

Facts: The respondent, Mr Mashigo, was admitted and enrolled as an attorney in 2016. He had served articles of clerkship with the firm Sukazi Inc. After his admission, the respondent remained with Sukazi Inc as a professional assistant until 2018. Thereafter, the respondent moved his name to the roll of non-practising attorneys. Part of the respondent’s conduct subject to determination in this matter occurred during this period. The respondent’s name was restored to the roll of practising attorneys, after five years, in 2023. The respondent is now practising as a sole practitioner under the name and style of Mashigo Kabelo Attorneys in Illovo, Johannesburg. He says his return to the practising roll and opening of a law firm was only to render himself compliant in case he must render legal services, as his main activities are in football agency. There are, effectively, three complaints lodged against the respondent. The respondent is alleged to have misappropriated trust funds and to be guilty of having practised without a fidelity fund certificate and trust account. Mr Sukazi, essentially, complained that he had discovered after the respondent had left the employ of his firm that the respondent stole or fraudulently misappropriated some business and trust monies whilst he was a professional assistant at the law firm. Another complaint or part of the complaint by Mr Sukazi related to the unauthorised spending on the firm’s credit card by the respondent.

Application: The Legal Practice Council (LPC) seeks an order that the respondent be struck off the roll of attorneys. The application is opposed by the respondent, mainly on the ground that the subject matters of most of the complaints against him have been amicably resolved with the relevant complainants, and with the remainder of the complaints he pleaded guilty and admitted the material transgressions when he appeared before the disciplinary committee of the LPC.

Discussion: There is no factual dispute in respect of the misappropriation or theft by the respondent when he misled Adv Drake to pay money into a bank account for his personal benefit. The dishonesty survives any amicable resolution of the matter. This offence has been established on a balance of probabilities. The law firm also complained about the misuse of the law firm’s credit card. The respondent acknowledged in writing that he is indebted to the law firm. Therefore, there is no doubt that an offence has been established in this regard. The Nyapotse complaint has been established. The respondent admitted his conduct in this regard and only sought to explain his motivations for doing what he did, which aspect is not relevant. Therefore, the alleged offending conduct has been established in respect of this complaint. The seriousness of the offences the respondent is guilty of is not ameliorated or extinguished by the fact that the respondent already may have amicably resolved most of the complaints or offences with the affected complainants or have pleaded guilty thereto before the disciplinary committee of the LPC. The respondent not only misappropriated trust funds of the client of Sukazi Inc but also misused a credit card allocated to him by the aforesaid law firm and practised without a trust account and fidelity fund certificate.

Findings: The facts clearly show that the respondent offended from the onset upon acquiring his licence to practice. His conduct deviated from what is acceptable and expected for the attorneys’ profession. It appears that the respondent, despite satisfactorily completing his training and examinations to qualify as an attorney, has not learned to distinguish what is right from what is wrong in the conduct of a legal practitioner or attorney. The respondent needs guidance. He is dishonest, but this doesn’t appear to be so embedded that he should be indefinitely excluded from the attorneys’ profession. Perhaps the unethical and dishonest behaviour can be cured or remedied to an acceptable level. A proper sanction will be for the respondent to be suspended from practising on his own account, as a partner or as a director of a juristic entity on specified conditions aimed at assisting him to critically remedy his defective conduct and steer himself back or his conduct onto course in order to conform to the very high standard, reputation or honour of the attorneys’ profession. As this is primarily aimed at remedying the respondent’s conduct, the suspension will be subject to conditions or remedial course. The respondent has to attend a course or training on practice management with emphasis on ethics.

Order: The respondent be suspended from practicing for own account, as a partner in a partnership or director of a juristic entity for a period of 2 years from date of the order, subject to conditions. (See paras [2]-[11] of the order).

MANAMELA AJ (COLLIS J concurring)

Facts: The respondent was admitted as an attorney of the Northern Cape Division of the High Court in 2014; was enrolled as an attorney of this court (Western Cape Division) in 2017 and as such with the applicant (Legal Practice Council). At the time of the complaints giving rise to this application he had been practising as sole director of HFG Attorneys Inc since early 2018. Mr Myburg appointed the respondent to assist him in a maintenance dispute with his former spouse. The respondent told him to pay the full amount of the maintenance arrears of R63,320.24 into his trust account pending a round table meeting which the respondent would arrange with his former spouse. This was duly paid by Mr Myburg on the same day together with R8,000 required by the respondent for a “consultation fee”. Mr Myburg paid a further R10,000 to the respondent at his request as a deposit for the proposed round table meeting. The meeting was never arranged by the respondent and eventually Mr Myburg settled the dispute directly with his former spouse. Mr Myburg instructed the respondent to refund him. The respondent failed to make payment as agreed.

Application: For the striking of the respondent’s name from the roll of attorneys. Two grounds were advanced, namely that prima facie the respondent: (a) misappropriated R73,320.24 held in trust on behalf of the client, Mr Myburg; and (b) failed to comply with the applicant’s request for information in terms of Rule 40.2.4 of its rules. There was also a complaint from Mr Prins because the respondent failed to properly account to him for two deposits made into his trust account of R38,030.50 and R100,000. The purpose was for the respondent to represent Mr Prins in the High Court in a dispute pertaining to his late father’s estate.

Discussion: Mr Myburg’s monies were transferred by the respondent without Mr Myburg’s permission from his trust account to his business account and utilised by the respondent. This is theft of trust monies which is one of the most serious offences a legal practitioner can commit. It is made worse by the respondent’s patently false attempt to justify his conduct ex post facto, with his claim that it was a temporary loan agreement with his client. The respondent not only stole trust monies but attempted to mislead both the applicant and the court to evade responsibility. That at the time of the so-called loan agreement he was practising for his own account while seemingly oblivious to the prohibition on loaning money from a client is also serious. There was also a failure to comply with the applicant’s request for information in terms of Rule 40.2.4 of the Legal Practice Rules. The respondent misled the applicant when he informed it he was returning to the “corporate sphere” in the full knowledge of a pending investigation against him relating to mismanagement of trust funds. He had no intention of doing so at the time. Instead he obtained employment at another firm of attorneys and transferred most of his client files there.

Findings: The respondent is indeed still relatively young (he is 36 years old). Accepted in his favour is that he suffered from severe depression, which he has now taken steps to address. He pleads for a second chance in the form of a suspension and has annexed two references from individuals as to his alleged good character. He also has a family to support. All these are mitigating factors. However, on careful consideration of the evidence the court is unpersuaded that the respondent has a true appreciation of his character defects. That being the case, one cannot be reassured that he will in future act in accordance with such an appreciation. He has also not placed anything before the court to enable it to formulate appropriate conditions, even if minded to impose a suspension. There is simply not enough to show that a suspension with attendant conditions will have the desired result. At present the respondent is regrettably a threat to any potential client, given his track record of maladministration; and he has also brought the profession into disrepute. It is of the utmost importance that the public is able to rely on the trustworthiness and absolute integrity of members of the legal profession.

Order: The respondent’s name is struck from the rolls of attorneys.

CLOETE J (FORTUIN J concurring)

* See also Legal Practice Council v Halles [2024] ZAGPPHC 624 and Maartens v Legal Practice Council [2024] ZAGPPHC 610 where depression is also mentioned by the attorneys.

Facts: Mr Nonxuba was admitted as an attorney in 2000 and commenced practicing as such with Mpambaniso Attorneys. In 2003, he started practicing for his own account, and he established Nonxuba Inc with himself as the sole director. He remains the only director of the firm. He specialises in personal injury and medical negligence cases in various provinces in South Africa, including the Western Cape. These cases overwhelmingly involve plaintiffs who are the parents/guardians of minor children who sustained birth injuries because of negligence on the part of medical personnel during the birth process, resulting in hypoxic ischaemic encephalopathy, foetal distress and, ultimately, cerebral palsy.

Application: The Legal Practice Council applies for the striking off of the name of Mr Nonxuba from the roll of attorneys of this court, and for the usual ancillary relief. The application had an unusual progression, in that it started off as an urgent application in 2021 and several applications were subsequently launched which included applications to intervene, joinder applications, a conditional application, and an application to interdict Mr Nonxuba. It was alleged that Mr Nonxuba had successfully prosecuted five medical negligence claims but had not complied with the court orders and did not pay over the monies due to the claimants via the trusts that he should have established on their behalf.

Discussion: During the course of the manifold applications, many thousands of pages were added to an ever-burgeoning record and at least 17 judges were involved in adjudicating the various procedural and substantive legal skirmishes. Despite the fact that the court orders in all five medical negligence claims were made during 2018 and 2019, Nonxuba, as of July 2021, had not established all the trusts, and where the trusts had been established, he failed to pay over the monies due to these trusts. A further complaint was received on behalf of the Eastern Cape Provincial Treasury which identified a further five trusts which Mr Nonxuba had failed to establish timeously or at all. The LPC submitted that the trust bank account statements indicate that Mr Nonxuba made unlawful transfers from trust to business. It is inconceivable that he was entitled to trust funds amounting to R348,845,000 which he transferred in perfectly round amounts on 759 occasions since January 2017. The LPC concluded, therefore, that Mr Nonxuba siphoned off an astonishingly large amount of money from his clients over an extended period.

Findings: Mr Nonxuba failed to comply with at least ten court orders requiring him to establish trusts and to pay over the funds held by him into these trusts.The remaining allegations relating to the misappropriation of trust funds and the fabrication of accounting records were met by a bare denial and a promise by Mr Nonxuba that the report from the accountant (Wapenaar) would exculpate him. The Wapenaar report, however, underscored the severity and extent of Mr Nonxuba’s transgressions. Mr Nonxuba has, through his deception of his clients, the LPC, and this court, shown himself not to be a fit and proper person to continue to be in practice. Theft of trust funds by practitioners does not only result in untold hardship for the victims, but it also brings the legal profession into disrepute. Those legal practitioners who violate the rules and ethics of the profession by failing to uphold the highest standards of honesty, reliability and integrity must suffer the consequences of their nefarious actions.

Order: The name of Zuko Mack Michael Nonxuba or Nonxuba Inc is struck off the roll of legal practitioners of this Honourable Court. See the further directions at para [82].

FRANCIS J (HENNEY J concurring)

Facts and issue: The applicants apply for the setting aside of their suspension from practising as legal practitioners pending the finalisation of the investigations against them and any subsequent disciplinary proceedings to be instituted. The order of suspension was granted on 26 September 2023. The allegations by the LPC were that the respondents were appointed as directors of the third respondent, at a time when they were not in possession of valid Fidelity Fund Certificates, and that they appear to be acting as directors of the third respondent, which creates a sense of unease and disquiet that requires investigation.

Discussion: Since the suspension application was filed, several new complaints have been forthcoming against the applicants and further investigations are still being conducted. Mr Steenkamp was found guilty by the LPC’s disciplinary committee on several counts of misconduct but filed a notice of appeal. Consequently, he has not yet been sanctioned. Neither Mr Coetzee, nor Mr Steenkamp is in possession of a Fidelity Fund Certificate (FFC). Section 84 of the Legal Practice Act places an obligation on every attorney who practises for their own account and any director of a practice which is a juristic entity to be in possession of a FFC and no such legal practitioner or a person employed or supervised by that legal practitioner may receive or hold funds belonging to any person, unless the legal practitioner is in possession of a FFC. Section 93 of the LPA stipulates that any person who contravenes s 84 in rendering legal services commits an offence and is liable on conviction to a fine or imprisonment for a period not exceeding two years, or to both such fine and imprisonment.

Findings: The LPC cannot be allowed to drag their feet to the detriment of the applicants who are entitled to finality. Their professional and personal lives are at stake. Notwithstanding Adv Greyling and Mr Coetzee’s submissions that the suspensions should be set aside now, court is not willing to accede to their request. There appears to be sufficient bright red lights that stand in the way of granting relief to the applicants. It is prudent to grant the LPC a final opportunity to get their proverbial ducks in a row. If finality is not reached by 31 May 2025, the suspensions shall lapse automatically.

Order: The first respondent shall finalise its disciplinary proceedings against the applicants on/or before 31 May 2025, failing which their suspensions shall lapse automatically.

Facts: The applicant is a foreign female legal practitioner. She had been admitted as an advocate in Lesotho on 20 March 2023. She is a citizen of the Kingdom of Lesotho and is domiciled there. She currently, however, resides in Pretoria. In terms of existing law, the applicant does not qualify to be admitted as a legal practitioner to practice law in South Africa. She contended that the law as it stands is unconstitutional and that the previous dispensation regarding the admission of advocates should be “revived”. In the alternative, she contended that the Minster of Justice should regulate the admission of foreign practitioners in such a fashion that she (and others in her position) be allowed to practice law in South Africa.

Application: In June 2023 the applicant launched an application for her admission as a legal practitioner in terms of the Legal Practice Act 28 of 2014 (LPA). In that application she relied on section 24(3) of the LPA which she claimed, when read with section 119(2), allowed her to invoke section 5 of the Admission of Advocates Act 74 of 1964 (AAA). After objection to her application for admission by the LPC, the applicant withdrew that application. In 2024, the applicant launched the present application. The applicant seeks an order declaring section 24(3) of the LPA as unconstitutional and invalid to the extent that it does not allow foreigners who have been admitted to practice as advocates in other jurisdictions to be admitted and authorised to be enrolled as legal practitioners in Republic of South Africa, together with alternative relief.

Discussion: In terms of the section 24(2) the LPA, admission to practice as a legal practitioner (which includes those wishing to be enrolled as advocates), is restricted to South African citizens or permanent residents of the Republic. This restriction has been found to be constitutionally compliant. The applicant concedes that, as the law currently stands and as interpreted by the respondents, she is not entitled to be admitted to practice law in the Republic. Her suggestion is that “one would have to read into section 24(3) the provisions of section 5” of the AAA. The applicant’s further contentions are that she had a right (to be admitted to practice law in the Republic) under the AAA, which had been “taken away” by its repeal. She argued that such a right could be “revived” in terms of section 119(2) of the LPA. The principal argument of the applicant is that the “rights” which she had in terms of the AAA had been “taken away” from her. Had the applicant been admitted as an advocate in the Kingdom of Lesotho before 1 November 2018, she would, in the same manner as those South Africans who had obtained LLB degrees before that date, have been entitled to apply to be enrolled after that date, in terms of the LPA (on condition that all the other requirements have been met). The applicant had not acquired such rights. She was only admitted as an advocate on 20 March 2023, after having completed her practical vocational training from April 2019 to January 2020.

Findings: The retention provision and the transitional or continued right created by section 115 of the LPA did not extend to rights which had not yet been in existence on 1 November 2018. Any rights which a prospective legal practitioner might acquire after that date, can only be exercised in terms of the LPA and not the repealed AAA. The applicant’s argument that the LPA had “taken away” some of her rights, is therefore unsustainable. At the time the LPA had come into operation, the applicant had no accrued rights. The applicant’s alternative argument, namely that the AAA, insofar as it provided for the admission of foreign advocates from designated countries, be kept “alive” so that persons in the position of the applicant, may at some future date after 1 November 2018, rely on the terms of a repealed act of parliament, flies directly in the face of parliamentary sovereignty. To demand from a court that it deems the provisions of an act of parliament still applicable when parliament has expressly repealed those provisions, would amount to law-making way beyond the separation of powers principle. The applicant has no right to be admitted to practice law in South Africa. The impugned section is not unconstitutional. It reflects the sovereign policy choice of the Legislature and does not unfairly discriminate against the applicant on any of the impermissible grounds set out in section 9(3) of the Constitution. Section 24(3) of the LPA also does not infringe the applicant’s rights to human dignity nor her right of association. It simply regulates access to the legal profession as contemplated in section 22 of the Constitution.

Order: The application is dismissed.

DAVIS J

Facts: Mr Links decided to buy a second-hand BMW M5, a 2012 model, which he was informed had 95,000 kilometres on the clock. Almost immediately after Mr Links took possession, the M5 started causing trouble and, apart from other issues, was diagnosed as having engine failure. Mr Links was informed that it was necessary to replace the engine at a cost of R509,078.48. He lodged a complaint with the Motor Industry Ombudsman for mediation, however, nothing came of the attempted mediation. Only afterwards did he lodge a complaint with the National Consumer Commission, against Platinum Wheels as the supplier.

Appeal: The Tribunal found that Platinum Wheels had contravened the Consumer Protection Act 68 of 2008 and ordered Platinum Wheels to refund Mr Links the purchase price paid for the M5. The High Court dismissed the appeal by Platinum Wheels and upheld the cross-appeal by the Commission and varied the wording of the order, regarding the repayment and the penalty.

Discussion: Mr Biyana, an erstwhile employee of the Commission, was the attorney who represented the Commission in the High Court, in his capacity as the in-house legal counsel. The legal representatives of Platinum Wheels became suspicious of what they referred to as “sharp” practices of Mr Biyana in the conduct of the appeal. It then emerged that Mr Biyana had been struck from the roll of attorneys shortly after he commenced employment as a legal advisor of the Commission. This was the prevailing situation when he appeared on behalf of the Commission before the Tribunal in 2021 and in the High Court in 2022. The Commission acts in the public interest ex lege and has historically briefed attorneys and advocates in private practice to represent members of the public. Due to an increase in High Court litigation, it became cost-effective to employ in-house legal practitioners to represent the public. The Commission dismally failed in its due diligence processes in Mr Biyana’s appointment. This was to the detriment of the public at large.

Findings: In contravening the provisions of the Legal Practice Act 28 of 2014, Mr Biyana committed a criminal offence and brought the administration of justice into disrepute. The fraud was committed in court: the institution tasked with ensuring that the values of our constitution are upheld. Our system allows persons not legally trained and those legally trained but not admitted as practitioners to assist the unrepresented litigant. However, those persons have no right of appearance in court, irrespective of ability and qualification. Therefore, Mr Biyana’s ability is not a consideration in the present enquiry. The absence or presence of prejudice to the consumer is irrelevant to the question of whether the fraud committed impacted negatively on the administration of justice to the detriment of the public interest. The proper functioning of the courts is premised on the absence of fraud in the process. The fraud committed in these proceedings was against the administration of justice, therefore, no litigant can condone it. It is for the court to protect the integrity of the proceedings and so retain public confidence in its orders and induce compliance. The people must be able to trust the judiciary to uphold the integrity of the judicial process.

Order: The appeal is upheld and the order of the High Court set aside and replaced with an order referring the matter to the High Court for hearing by a differently constituted bench. The Registrar is directed to forward a copy of this judgment to the Legal Practice Council.

BAARTMAN AJA (ZONDI DP, MOTHLE JA and NAIDOO AJA concurring)

NICHOLLS JA found that this was an instance where the irregularity is not such that it should vitiate the judgment, and that do so would be a waste of scarce judicial resources.