Society of Advocates of Polokwane v Maluleke and Another (7113/2017) [2023] ZALMPPHC 13 (17 March 2023)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

LIMPOPO DIVISION,

POLOKWANE

Case Number: 7113/2017

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: NO

REVISED.

DATE: 17/3/2023

SIGNATURE:

In the matter between:

THE SOCIETY OF ADVOCATES OF POLOKWANE Applicant

and

TSUNDZUKA KEVIN MALULEKE

First Respondent

THE LAW SOCIETY OF THE NORTHERN PROVINCES Second Respondent

JUDGMENT

Delivered. This judgment was handed down electronically by circulation to the parties' representatives by email. The date and time for hand down is deemed to be 10h00 on 17 March 2023.

RANCHOD J

Introduction

[1] The genesis of this matter is an application (the main application) launched by the Society of Advocates of Polokwane on 17 October 2017 for the striking of the first respondent from the roll of advocates. On 17 January 2023 the court made an order that the first respondent be struck from the roll of advocates with costs on the attorney and

client scale and that reasons will follow in due course. The following day the first respondent filed a notice of application for

leave to appeal pending delivery of the reasons for the order. These are the reasons.

[2] In what follows I will refer to the applicant as 'the SAP', first respondent by name as 'Mr Maluleke' (to avoid confusion as he has also been the applicant in several interlocutory applications), the second respondent as 'the LSNP', the Legal Practice Council as 'the LPC' and the Limpopo Provincial Council as 'the Provincial Council'.

[3] Mr Maluleke did not file an opposing or answering affidavit. Instead, he launched several interlocutory applications. More about these applications later.

[4] On the morning of 17th January 2023, prior to the hearing of the main application, we (Mashile J and I) were directed1 by the Acting Judge President (the AJP) to stand the main application down until 14:00 pending the hearing of an urgent ex parte application in chambers by the AJP. We were not aware of the contents of the application until later in the afternoon when we were informed only of the order made by the AJP that Mr Maluleke had to, inter alia, first serve the ex parte application on the respondents. The order reads:

'1. The matter is heard in camera due to the parties involved and the nature of the application.

2. The application is postponed sine die.

3. The applicant is ordered to serve the papers on the respondents on or before the 17th February 2023.

4. The respondents are to file their opposing papers on or before the 8 March 2023.

5. The application for postponement of the main application is to be heard by the judges allocated to hear the matter as set down today the 17th January 2023.

6. Costs are to be costs in the application.·

[5] Mr Maluleke launched the urgent ex parte application in terms of s 47(1) of the Superior Courts Act[1] seeking consent to institute civil proceedings against the judges hearing the matter[2] and the now retired Judge President Makgoba, the Chief Registrar of this Court, the Minister of Justice and Correctional Services and the Provincial Council of the LPC. He somehow obtained our private email addresses and served the application on us by email after we had made the order in the striking off application. He sought leave "to institute urgent interdict and review application proceedings against the First, Second and Third Respondents relating to their acting appointments and the process followed in the aforesaid acting appointments respectively, in the main application with case number 7113/2017."[3] He also sought ani order that "the interlocutory and main application proceedings under case number 7113/2017, irrationally, irregularly and unlawfully set down or scheduled for hearing on 17 January 2023 at 10am (in the morning) by retired Makgoba JP, be postponed sine die pending the final determination"[4] of the interdict and review application. [5]

[6] An application by Mr Maluleke from the bar for postponement of the main application was refused. We heard the main application in the late afternoon and the order striking Mr Maluleke's name off the roll of advocates was made.

[7] It would be apposite to mention that the main application was launched prior to the repeal of the Admission of Advocates Act 74 of 1964 (the AA Act) on 1 November 2018 by the Legal Practice Act 28 of 2014 (the LPA)[6]. Section 116 of the LPA provides:

"(1) Any enquiry in term of any law repealed by this Act into the alleged unprofessional or dishonourable or unworthy conduct of a legal practitioner which has not been concluded at the date referred to in section 120(4), must be referred to the Council which must treat the matter as it deems appropriate.

(2) Any proceedings in respect of the suspension of any person from practice as an advocate, attorney, conveyancer or notary or in respect of the removal of the name of any person from the roll of advocates, attorneys, conveyancers or notaries which have been instituted in terms of any law repealed by this Act, and which have not been concluded at the date referred to in section 120(4), must be continued and concluded as if that law had not been repealed, and for that purpose a reference in the provisions relating to such suspension or removal, to the General Council of the Bar of South Africa, any Bar Council, any Society of Advocates, any society or the State Attorney mast be construed as a reference to the Council."

[8] Accordingly, this matter was dealt with according to the provisions of the AA Act.

Factual background

[9] Mr Maluleke was admitted as an Advocate by the High Court of South Africa (Thohoyandou Division) on 6 December 2006.

[10] On 17 October 2017 the SAP (which later became known as the Limpopo Society of Advocates) launched the main application in which it sought the removal of Mr Maluleke's name from the roll of practicing advocates in terms of section 7 of the AA act and costs of the application.

[11] The basis of the application was:

11.1 During December 2016 the SAP received two complaints against Mr Maluleke, one from the then Judge President (Makgoba JP) and another from Judge GM Phatudi of this Division of the High Court.[7]

11.2 In a letter dated 05 December 2016 from the SAP to Mr Maluleke it was at that early stage already pointed out to him:

'4. Please take notice that investigations into unprofessional conduct are sui generis in their nature. You are expected to co-operate fully in the process and a failure to do so may be construed as unprofessional conduct in itself.'

11.3 It appears that Mr Maluleke did not respond to the SAP regarding the two complaints.

11.4 The SAP Bar Council appointed two of its members to investigate the complaints against Mr Maluleke. Certain facts came to light which prompted the SAP to immediately launch the main application.

11.5 The investigations revealed that during 2005, Mr Maluleke entered a contract of Articles of Clerkship with Mr Andre Naude of the attorneys firm Coxwell, Steyn, Vise & Naude. On 23 November 2005 Mr Maluleke terminated the contract for reasons unknown.

11.6 Mr Maluleke thereafter entered a Contract of Articles of Clerkship with Mr Johannes Hamman (Junior) of the attorneys firm Hamman Moosa Inc. on 17 January 2006. At the beginning of August 2006 his principal instituted disciplinary proceedings against Mr Maluleke charging him with gross misconduct. The relevant parts of the charge sheet (dated 7 August 2006) read as follows:

"You are hereby accused of gross misconduct in that:

1. You persuaded Mr M.H Bapela to hand over to yourself, a cash cheque in the amount of R 10 000.00, which cheque was cashed by yourself on 27 June 2006, furthermore you persuaded Mr Bapela to hand over to yourself, a cash cheque of R 7 000.00, which cheque had not been cashed yet, and on Saturday 29 July 2006 you persuaded Mr Bapela to hand to you the amount R710.00 in cash, all payments purportedly for payment in respect of legal services rendered by Hamman Attorneys to Mr Bapela and which money you never paid over to Hamman Attorneys.

2. You persuaded Mr M.T Khandela to hand over R 2 000.00 in cash to yourself purportedly for payment of legal services rendered by Hamman Attorneys to Mr Khandela, which money you never paid over to Hamman Attorneys.

3. You intimidated Mr A.S.K Ramovha, a co-worker of yourself, in an attempt to prevent the investigation of the above charges, specifically in that you sent numerous threatening sms's and also telephonically threatened Mr Ramovha of assassinating him.

4. You intimidated Mr M.H Bapela by following him around town, contacting him and thereby verbally threatening him that "something bad" shall happen to him should he continue to assist in the investigations and testify at the disciplinary hearing."

11.7 At the conclusion of the disciplinary hearing Mr Maluleke was found guilty of the charges. He was dismissed and his contract of Clerkship was cancelled.

11.8 Mr Maluleke thereafter entered a contract of Articles of Clerkship with Attorney Masilo Philip Sebola on 01 June 2007. Mr Sebola requested the second respondent (the LSNP) to register the contract and issue a certificate of right of appearance[8] to Mr Maluleke. However, a screening interview of Mr Maluleke had to be conducted by a member of the LSNP before such registration could take place.

11.9 The screening interview was conducted by attorney Vise of Coxwell, Steyn, Vise & Naude on 05 June 2007. After the interview was held Mr Vise informed the LSNP in a letter dated 19 June 2007:

'During this interview th1e writer questioned Mr Maluleke who had previously been employed at this firm, (where he resigned) (sic) and at Hamman-Moosa Inc about the reasons he had left his employment at Hamman-Moosa. Mr Maluleke gave an explanation about having been given R2,000.00 bonus by a client with the permission of Mr Hamman and Mr Moosa having taken exception to this and that he was dismissed even though he paid the amount back.'

11.10 The LSNP referred the matter to its Head of Disciplinary Matters for investigation. In a written response by Mr Maluleke to the LSNP's enquiry about the reasons for his dismissal by Mr Hamman, he says, inter alia:

'I wish to state that the R10 000,00 alleged by Hamman Attorneys has nothing to do with fees or Hamman Attorneys as I was borrowed the money by my friend Mr Bapela as we were busy with projects, which we agreed that it will be paid in monthly instalments to him.

. . .

I was surprised to learn that the issue of R10 000,00 which had nothing to do with Hamman Attorneys was part of the charges levelled against me.'

11.11 Mr Maluleke was summoned to appear before a disciplinary committee meeting of the LSNP on 31 October 2007. The charges against him were: 'That you are guilty of unprofessional or dishonourable or unworthy conduct on the part of a practitioner in that you

1.) Misappropriated trust funds in the amount of R10 000-00 received from Mr Bapela due and payable to Hamman Attorneys in that you failed to pay over this cheque to Hamman Attorneys; and

2.) Misappropriated trust funds in the amount of R2 000-00 received from Mr Khandela in that you failed to pay over this amount to Hamman Attorneys.'

11.12 Mr Maluleke failed to appear before the Disciplinary Committee. It found Mr Maluleke guilty on both charges and recommended that the matter be referred to the LSNP's Council: 'to enable Mr Maluleke to give reasons why he is a fit and proper person to conclude contract of articleship.'

11.13 The deponent to the Founding Affidavit (Mr Mokhare SC) in the main application says Mr Maluleke apparently failed thereafter to convince the LSNP that he was a fit and proper person, so the contract of Articles of Clerkship with Mr Sebola was never registered.

[12] Shortly thereafter, on 06 December 2007, Mr Maluleke applied to be admitted as an advocate. He concealed or failed to disclose the above-mentioned sequence of events from the Court and stated explicitly in his founding affidavit:

"I have not been found guilty of misconduct in any proceedings whilst in a previous profession or employment and that when my previous employment was terminated no misconduct proceedings were pending against me."

And further

"I am unaware of any fact, which may detrimentally affect the adjudication of this application. I respectfully submit that I am fit and proper person to practice as an advocate of this court and duly qualified. I truly and honestly conduct (sic) myself in the practice of an ad11ocate to the best of my knowledge and ability; '

He was duly admitted and enrolled as a practising advocate.

[13] On 07 December 2021, just over four years after the main application was launched, the Provincial LPC filed an application for the suspension of Mr Maluleke from practicing as an advocate, pending finalisation of the striking application. This application (the suspension application) was made in view of the delay in finalisation of the main application and that additional complaints had been lodged with the Provincial LPC against Mr Maluleke. I elaborate on these complaints later in this judgment.

[14] Mr Maluleke did not file an answering affidavit in this application either. Instead, he filed interlocutory applications, as in the main application. This invariably delayed the application for his suspension.

The court's approach to applications for striking or suspension from the roll

[15] Section 7(1)(d) of the Admissions of Advocates Act 74 of 1964 allowed a court to suspend any person from practice as an advocate or to order that his or her name be struck off the roll of advocates 'if the court is satisfied that he [or she] is not a fit and proper person to continue to practise as an advocate.' It is trite that there are three steps in the enquiry whether such action should be taken. In Malan v Law Society, Northern Provinces[9] the SCA said, in the context of the comparable provision of the Attorneys Act 53 of 1979, relying upon what had been said to similar

effect in Jasat v Natal Law Society:[10]

'First, the court must decide whether the alleged offending conduct has been established on a preponderance of possibilities, which is a factual inquiry.

Second, it must consider whether the person concerned "in the discretion of the court" is not a fit and proper person to continue to 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.

And third, 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 would suffice.'

[16] The enquiry in each case necessarily calls for the conduct complained of to be weighed against the standards of the profession which is partly value judgment and partly objective fact.[11]

[17] In The General Council of the Bar v Geach and Others[12] it was stated:

"125. On questions of admission to, and continued membership of, the profession the high court exercises control. It is the high court to which application must be made for admission and the high court that has the power to remove practitioners from the roll of advocates or attorneys.

126. A person can only be admitted to practise as an advocate if they satisfy the court that they are a fit and proper person to be admitted as such. Central to the determination of that question, which is the same question that has to be answered in respect of attorneys, is whether the applicant for admission is a person of 'complete honesty, reliability and integrity'. The court's duty is to satisfy itself that the applicant is a proper person to be allowed to practise and that admitting the applicant to the profession involves 'no danger to the public and no danger to the good name of the profession'. In explaining the reasons for this I need go Hefer further than the words of Hefer JA in Kekana v Society of Advocates, of South Africa, when he said:

'Legal practitioners occupy a unique position. On the one hand they serve the interests of their clients, which require a case to be presented fearlessly and vigorously. On the other hand, as officers of the Court they serve the interests of justice itself by acting as a bulwark against the admission of fabricated evidence. Both professions have strict ethical rules aimed at preventing their members from becoming parties to the deception of the Court. Unfortunately, the observance of the rules is not assured, because what happens between legal representatives and their clients or witnesses is not a matter for public scrutiny. The preservation of a high standard of professional ethics having thus been left almost entirely in the hands of individual practitioners, it stands to reason, firstly, that absolute personal integrity and scrupulous honesty are demanded of each of them and, secondly, that a practitioner who lacks these qualities cannot be expected to play his part.'

The need for absolute honesty and integrity applies both in relation to advocates' duties to their clients and their duties to the courts. In the past, applicants for admission as an advocate, who were unable to demonstrate those qualities of honesty and integrity, had their applications refused."

[18] The qualities of honesty and integrity must continue to be displayed throughout an advocate's practice. That is apparent from the provision of s7(1) of the Act which reads as follows:

"Subject to the provisions of any other law, a court of any division may, upon application, suspend any person from practice as an advocate or order that the name of any person be struck off the roll of advocates—

(a)-(c) ...

(d) if the court is satisfied t11at he is not a fit and proper person to continue to practise as an advocate."

[19] As was stated further in The Bar Council of South Africa v Geach and Others[13]:

"127 Conduct by an advocate in the course of his or her practice that demonstrates a lack of honesty or integrity has repeatedly been held to lead to the conclusion that they are no longer a fit and proper person to continue to practise as an advocate. Although in these cases the court is usually concerned with conduct in the course of the advocate's practice, that does not mean that conduct unconnected with practice may not be taken into account in assessing whether the advocate lacks the honesty and integrity to remain in practice as an advocate. (My emphasis.)

128 Hefer JA set out the proper approach to an application under s 7(1)(d) of the Act in Kekana, where he said:

'In terms of s 7(1) of the Admission of Advocates Act 74 of 1964, as amended, the Court may suspend any person from practice, or order that the name of any person be struck off the roll, if it is satisfied that he is not a fit and proper person to continue to practise as an advocate. The way in which the Court had to deal with an application for the removal of an attorney's name from the roll under a similar provision in the Attorneys, Notaries and Conveyancers Admission Act 23 of 1934, as amended (before that Act was repealed), was considered in Nyembezi v Law Society, Natal 1981 (2) SA 752 (A) at 756H-758C. It emerges from the judgment that the Court first has to decide whether the alleged offending conduct has been established on a preponderance of probability and, if so, whether the person in question is a fit and proper person to practise as an attorney. Although the last finding to some extent involves a value judgment, it is in essence one of making an objective finding of fact and discretion does not enter the picture. But, once there is a finding that he is not a fit and proper person to practise, he may in the Court's discretion either be suspended or struck off the roll."'

[20] Again, as Ponnan JA succinctly put it in General Council of The Bar of South Africa v Geach and Others[14]:

"As officers of our courts lawyers play a vital role in upholding the Constitution and ensuring that our system of justice is both efficient and effective. It therefore stands to reason that absolute personal integrity and scrupulous honesty are demanded of each of them. It follows that generally a practitioner who is found to be dishonest should in the absence of exceptional circumstances expect to have his name struck from the roll."

Mr Maluleke's conduct

[21] The conduct of Mr Maluleke fell far short of that expected of an attorney or advocate.

[22] As I said, Mr Maluleke did not file an answering affidavit in the main application. The facts alleged by the SAP remain uncontroverted. Over a protracted period of time he launched a number of interlocutory applications.

22.1 On 08 November 2017 (shortly after the main application was launched by the SAP), Mr Maluleke served the attorneys of the applicant, Chayya Attorneys, with a notice styled "NOTICE IN TERMS OF RULE 35(12) OF THE UNIFORM RULES OF COURT ANO/OR COMMON LAW ANO/OR SECTION 35(3)(a), (b) and (i) ANO/OR 173 OF CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA ACT, 1996". It called upon the applicant "to produce ... particulars" set out in no less than 47 sub-paragraphs. This notice will in what follows be referred to as the "Rule 35(12) notice".

22.2 On 01 June 2018 Mr Maluleke launched yet another interlocutory application, seeking:

22.2.1 'an order that the main application be stayed pending its "allocation" by the Chief Justice to another Division of the High Court, but excluding the Mpumalanga, Gauteng, Free State, North West and Kwa-Zulu Natal Divisions',

22.2.2 'alternatively an order that the main application be removed, in terms of section 27(1)(b) of the Superior Courts Act 10 of 2013, to another Division of the High Court, but once again excluding the Divisions already referred to' ;

22.2.3 'further alternatively that the main application be stayed permanently on the basis that it is vexatious and frivolous and its continuance in all the circumstances of this case, is, or, may prove, to be an injustice on the part of the First Respondent.' (My emphasis.)

22.3 On 17 September 2018, almost a year after the main application was launched, Mr Maluleke filed a notice in terms of Uniform Rule 7(1),

disputing:

'the authority of the Applicant's Attorneys of record to act on behalf of the Applicant to launch the main application and/or oppose the present interlocutory applications.'

[23] The application was dealt with by Judge C.J Olivier (Acting Deputy Judge President: Northern Cape Division) who was appointed in this Division to hear the applications. In each case, after launching the applications, Mr Maluleke apparently did nothing to bring the applications to finality. It was the SAP that set the applications down for hearing. The learned Judge dismissed the applications with costs. It would be apposite to briefly set out some of the remarks made by the learned Judge.

23.1 As I said, the Rule 7 .1 notice was filed almost a year after the launch of the main application. The rule does provide that such a notice can be filed outside the prescribed period of 10 days, but then only "with the leave of the court on good cause shown." The learned Judge says:

23.1.1 "No substantive application for condonation was brought. Mr Maluleke did not offer any explanation whatsoever for this, or for the delay and for the fact that the filing of the notice was left until only 2 days before the hearing of these interlocutory applications."[15]

23.1.2 "... the fact that the present notice was filed hopelessly out of time and that court time was then taken up to deal with that."[16]

23.1.3 "The timing of the filing of the notice was suspect and I would not have been surprised if it was argued [by the SAP] to have constituted an attempted abuse of process."[17]

23.2 The basis for the application by Mr Maluleke for the main application to be stayed permanently was that it was "vexatious and frivolous." This in circumstances where Mr Maluleke had not filed as answering affidavit in the main application. The learned Judge opined that Mr Maluleke did not substantiate or explain why it was frivolous and vexatious and why he alleged that its "continuance, in all the circumstances of the case, is, or may prove, to be an injustice or serious embarrassment to one or other parties".[18]

23.3 Judge Olivier further states:

··surety allegations of dishonesty on the part of an advocate cannot be discounted as being frivolous or vexatious; especially not where they have not as yet been denied or explained."[19]

23.4 As far as the Rule 35(12) notice is concerned the learned Judge stated:[20]

'78 The 'dreary task' of sifting through the myriad of requests in the Rule 35(12) notice has revealed that for the most part the documents, minutes. transcriptions and records, and even particulars, which the first respondent wishes the applicant to produce, can in fact not by any stretch of the imagination be said to have been referred to in the founding affidavit in the main application.

79 If fact, many of the requests in the Rule 35(12) notice do not even themselves refer to anything that could remotely be described as something that would be capable of being produced for inspection, as envisaged in Rule 35(12). In many paragraphs of the notice the first respondent has not even taken the trouble to point out the paragraph of the founding affidavit in the main application in which the required reference was allegedly made, and he has also not done so in his founding affidavit in the Rule 30A application.'

[24] In spite of these findings, when the Provincial LPC applied to intervene in the main application, Mr Maluleke adopted virtually the same modus operandi as before by launching various interlocutory applications and notices, inter alia, in terms of Rule 35(12), an application to strike and an application in terms of Rule 7. Notwithstanding the judgment of Olivier J that in the Rule 35(12) application (in the main application) Mr Maluleke had failed to obtain directions from the court in terms of Rule 35(13), he again served notice in the intervention application on 1O December 2021 without doing so.

[25] However, I deem it unnecessary to deal with those interlocutory applications any further as I had ruled (and provided reasons why) the application for intervention was not necessary in view of the provisions of s116 of the LPA[21].

[26] Mr Maluleke sought leave to appeal against my judgment in the intervention application which was refused on 6 June 2022. Although he had intimated that he intended to petition the Supreme Court of Appeal (the SCA), it appears that he did nothing to pursue it until the Limpopo Society of Advocates ("the LSA"), which is the successor to the SAP, set down the main application on 15th December 2022 for hearing on 17 January 2023.

[27] Undaunted, Mr Maluleke launched an urgent application under case number 01/2023 (to be heard immediately prior to the main application on 17 January 2023). He sought, inter alia, an order, "interdicting and/or restraining the Legal Practice Council from proceeding with the main application". He also sought:

"An order interdicting and restraining the Second Respondent ("LPC") from implementing and/or making use in any manner, the adverse findings and/or negative remarks and/or conclusions and/or recommendations made by the First Respondent [ Advocate Phetola Sekola N.O.] against the Applicant in the Investigation Committee report dated 19 November 2021."[22]

In addition, he sought a punitive costs order against the respondents.

[28] It beggars belief that Mr Maluleke launched this application bearing in mind that he had not put any version before the court in the main application. In any event, we dealt with the application before hearing the main application and struck it off the roll with costs for lack of urgency and that, in any event, any perceived urgency was self-created by Mr Maluleke's failure to file his petition at the SCA since 06 June 2022 until 15 December 2022.

[29] Mr Maluleke had also launched a review application under case number 02/2023 but this was removed from the roll by agreement, with costs reserved.

[30] With seemingly no limit to the arsenal at his disposal, Mr Maluleke also set down the urgent ex-parte application to be heard at 9:00, i.e. an hour before the main application was to be heard. As I said, I was cited as first respondent, and Mashile J and former Judge President Makgoba J, as second and third respondents, respectively, and others. I have set out some of the details of the application at the beginning of this judgment.

[31] As I mentioned earlier, the ex parte application led to a delay in the hearing of the main application. We determined, with the concurrence of all the parties that, if necessary, the main application will continue after normal court hours. Mr Maluleke requested that he be excused for one hour from 17:00 to 18:00 as he had to fetch his children from their school. He called at approximately 17:55 advising that he would not make it for 18:00 because of 'loadshedding' and requested if he could be excused until 18:15, to which we agreed. At approximately 18:10, our registrar received an e-mail message from him wherein he said that there was a medical emergency concerning one of his children to which he had to attend. No specificity of the medical emergency was proffered. He then concluded by requesting that the matter be postponed. Given the history of the matter and the numerous attempts by Mr Maluleke to avoid the finalisation of the main application we determined that the matter must proceed in his absence. We were of the view that in any event, he had not filed an answering affidavit in the main application since its inception and the matter was effectively unopposed. The matter proceeded on that basis and, as I said, Mr Maluleke was struck off the Roll.

[32] The Provincial LPC filed an affidavit on 11 January 2023 in support of the pending main and suspension applications. This, it said, was necessitated by a further number of events which took place involving Mr Maluleke between the period Mr Maluleke was admitted as an advocate in 2007 and the main application in 2017. The deponent to the affidavit in support of the enrolment for hearing of the main and suspension applications, Ms M.C Mahlatji stated:

32.1 Two members of the public laid charges against Mr Maluleke, both of them believing that he was a practicing attorney while he was not. In both instances the Law Society of the Northern Provinces indicated to the complainant that they had no jurisdiction over him since Mr Maluleke was not an admitted attorney.

32.2 Mr Maluleke laid a charge of intimidation against JP Makgoba. However, the prosecutor declined to prosecute the Judge President.

32.3 Mr Maluleke publicised his alleged differences with the Judge President and other Judges in the daily press on a number of occasions.

32.4 In early 2017 an organisation called Limpopo Legal Solutions, of which Mr Maluleke was a founding member, organised a so-called anti-corruption march calling the judiciary corrupt without any evidence to that effect. It published a photograph of the then Judge President on the leaflets that advertised the march.

32.5 On 26 September 2017, the Constitutional Court handed down judgment in an application[23] that was initially heard in the Thohoyandou High Court. The first applicant in the matter was Limpopo Legal Solutions and Mr Maluleke was its counsel. The Constitutional Court remarked that:

The High Court's view that counsel was dishonest in taking the interim order the next day was, regrettably, warranted.'[24]

32.6 Ms Mahlatji cites several other instances where Limpopo Legal Solutions and an organisation called Amalgamated Lawyers (in which Mr Maluleke is apparently a central figure) made allegations, without proof, of impropriety against Judge M.G Phatudi as well as Judge President Mlambo of the Gauteng Provincial Division of the High Court. I do not deem it necessary to go into the details of the allegations.

32.7 Mr Maluleke gave three different versions regarding the charge of theft of monies paid by clients of the firm by appropriating them for his own benefit instead of paying them over to his principal at the time he was serving articles of clerkship with attorneys Hamman Moos Inc.

[33] I have set out in some detail the complaints levelled against Mr Maluleke by JP Makgoba and Judge G.M Phatudi, the investigation of which led the SAP to discovering the facts about Mr Maluleke's admission as an advocate and the prior events regarding his articles

of clerkship:

33.1 The complaint by JP Makgoba (dated 06 September 2016) was against Mr Maluleke and his instructing attorney Carol Selepe who was the legal representative of the applicant in case number 2043/2016 in this court. The Judge President says:

'I enclose herewith a copy of the applicant's replying affidavit the deponent of which is one Takalani Margaret Ramanyimi, who is a member and I or officer of the applicant, Limpopo Legal Solutions. Advocate Maluleke is also a member and officer of the applicant before Court.

I wish to draw your attention to paragraphs 11.13 to 11.17. It will be noted in paragraphs 11.13, 11.14 and 11.15 that the deponent or legal representatives are making accusations of unprofessional and I or dishonourable conduct on the part of another legal representative who is their opponent in the pending case.

It is unfortunate and in fact disturbing that my name, as the Judge President of the Limpopo Division of the High Court is being dragged into this dispute between the lawyers. The contents of paragraphs 11.16 and 11.17 are clearly defamatory of me and are bringing my office into disrepute

I find it very unfortunate and disturbing that the high office of the Judge President is not respected by certain of your members.

In the result I sincerely request the Law Society and the Bar Council to look into the conduct of the two legal practitioners, Attorney Selepe and Advocate Maluleke.

This matter has a negative impact on my dignity and position as Judge President. May I therefore hear from you how you would address the issue.'

33.2 The complaint by Judge G.M Phatudi related to the same matter of Limpopo Legal Solutions v Vhembe District Municipality in relation to case number 2043/2016. In the written judgment dated 14 October 2016 the learned Judge says, at para 30:

"At issue is whether Mr. Maluleke, who continued to "appear" on behalf of the Applicant as counsel and as Applicant's member, after the withdrawals of Applicant's attorneys, could have been ethically and in terms of the ethos of the profession, validly entitled to continue to act for the Applicant. The answer to this question should be in the negative. This is so particularly because it was Ramanyimi who at all material times was authorised to bring the application on behalf of the Applicant. At no stage during the currency- of these proceedings was her "authority" ever terminated. Logic dictates therefore that Mr. Maluleke was not entitled to "appear" in his personal capacity on behalf of the Applicant either. He produced no resolution superseding the initial "resolution" authorizing Ramanyimi (Annexure "LLS1"). He failed to demonstrate that he had the necessary authority to continue to represent the Applicant, not only as its member, but also as counsel holding a proper brief. His conduct, therefore, encroached on the rules of ethics of the profession, which is a matter quiet disturbing. What remains is that he has on more than one occasion appeared in Court for the Applicant without a brief."

[34] Judge Phatudi directed that the Registrar forward a copy of his judgment "immediately to the General Council of the Bar (RSA) to investigate the conduct of Advocate T.K Maluleke for the remarks I made in paragraphs 25 and 30 of the judgment."

[35] In this court, during the hearing of the main application Mr Maluleke stated in open court that we (the presiding judges) were 'hired guns' appointed to 'kill' him. The gratuitous insults and intemperate language directed at the court indicates a defect of character that is unacceptable in an officer of the court. He was argumentative, often unnecessarily raised his voice and his conduct in court was one of contemptuousness towards the bench. His conduct in using delaying tactics by launching frivolous interlocutory

applications was nothing short of being obstructive to the finalisation of the main application. Mr Maluleke persisted in his conduct in the case as if it was an ordinary civil matter even though the SAP reminded him at an early stage already that the inquiry by it into alleged misconduct on his part is sui generis and he was expected to fully co­ operate in the investigation as an officer of the court. In Van der Berg v General Council of the Bar of South Africa[25] Nugent JA said:

'Proceedings to discipline a practitioner are generally commenced on notice of motion but the ordinary approach as outlined in Plascon-Evans[26] is not appropriate to applications of that kind. The applicant's role in bringing such proceedings is not that of an ordinary adversarial

litigant but is rather to bring evidence of a practitioner's misconduct to the attention of the court, in the interests of the

court, the profession and the public at large, to enable a court to exercise its disciplinary powers. It will not always be possible for a court to properly fulfil its disciplinary function if it confines its enquiry to admitted facts as it would ordinarily do in motion proceedings and it will often find it necessary to properly establish the facts.' (Footnotes omitted.)

Reasons for striking from roll of advocates

[36] I turn to the first stage of the inquiry (a factual inquiry). In my view, the conduct complained of has been established on a balance of probabilities.

[37] The most important factor, amongst the others set out herein is that when Mr Maluleke applied for admission as an advocate, he was dishonest and committed perjury when he stated under oath that he had no previous convictions and was not aware of any facts which may detrimentally affect the application. The registrar of the court will be directed to forward a copy of this judgment to the Deputy Director of Prosecutions, Limpopo to take such steps as they may deem appropriate in this regard.

[38] The second stage of the inquiry, which is a discretionary evaluation, necessarily calls for the conduct complained of to be weighed against the standards of the profession, which is partly value judgment and partly objective fact. Mr Maluleke's conduct as detailed herein renders him unfit to continue to practice as an advocate. Mr Maluleke is patently guilty of unprofessional, dishonourable and unworthy conduct.

[39] The third and final stage is the sanction to be imposed, i.e., whether the delinquent practitioner should be struck from the roll or suspended. This too, involves the exercise of a discretion. He has manifested character defects and a lack of integrity and has brought the profession into disrepute. His failure to take responsibility for his actions and to own up to them demonstrates that he has no remorse for what he has done. He avoided answering to the court for what he had done by failing to file an answering affidavit. He was required to deal with the allegations which were made against him and was required to assist the court in arriving at a fair and just determination of the matter, by placing the relevant facts and his explanation and personal circumstances before it. He did not.

[41] Mr Maluleke's statements that he is 'the Founder and President of the Amalgamated Lawyers Association ("ALA"), an association of Lawyers, established for amongst others, to promote ethical leadership and conduct' and also "Founder of the Limpopo Legal Solutions, ("LLS")' established for amongst others, to hold state entities and public officer (sic) bearers and/ or officials to account[27] are. given his egregious conduct, rather anomalous to say the·least.

[42] In an article in Groundup, Seegobin J raises concern, with reference to some decided cases, about the conduct of some legal practitioners[28]:

This type of behaviour is symptomatic of a general lack of respect on the part of certain legal practitioners towards the bench. The extreme lengths to which some of them will go in order to undermine the legitimacy and functioning of our courts should be a matter of grave concern to us all.

As officers of the court there is a paramount duty on all legal practitioners to conduct themselves with the highest degree of integrity and honesty at all times, to ensure that the dignity and decorum of the court is maintained and to remember at all times that their first duty is to the court and to no one else. The effective functioning of our courts and the proper administration of justice are highly dependent on how legal practitioners go about discharging this duty. Sadly, the paramountcy of the duty to the court appears to be lost on many legal practitioners of late.

…

All legal practitioners in our country are bound by a Code of Conduct as well as all other duties imposed upon them through judgments handed down by our courts from time to time. Legal practitioners are required to be fully aware of what these duties require. The Code of Conduct confirms that although a client's interest is always paramount, such interest must yield to a legal practitioner's duty to the court, adherence to the law, the interests of justice, and the upholding of ethical standards required of legal practitioners.

Part of a legal practitioner's duty to the court is not to abuse the court process and not to deliberately cause cases to be delayed. The excessive delays in court proceedings caused by legal practitioners requesting numerous postponements have become a daily occurrence in courts throughout the country. Its prevalence is so widespread that retired Constitutional Court Judge Edwin Cameron, in an article published in De Rebus in 2020, cautioned that such delays serve only to weaken the legal system and impact negatively on the rule of law.'

[43] We were satisfied that the only appropriate sanction was striking off, hence we made the order that we did.

[44] As is customary in matters of this nature, Mr Maluleke was ordered to bear the. costs of the application on these, tie as between attorney and client.

[45] The registrar of this coun is directed to furnish a copy of this judgment to the

Deputy Director of Public Prosecutions. Limpopo, in view of the finding of perjury against Mr Maluleke.

Judge of the High Court: Gauteng

Acting Judge: High Court: Limpopo

I agree.

MASHILE J

Judge of the High Court: Mpumalanga

Appearances:

For applicant: Adv. G Diamond Instructed by Chaya Attorneys 29 Fagan Street c/o Nelson Mandela Drive Polokwane For first respondent: In person Unit 2, Jabula Broadway Street Northview, Bendor Polokwane For second respondent: Attorney JF Moolman Pratt, Luyt & De Lange Attorneys Legnum Park, 20 Watermelon Street Platinum Park, Bendor Polokwane

[1] Act 10 of 2013. It provides: 'Notwithstanding any other law, no civil proceedings by way of summons or notice of motion may be

instituted against any judge of a Superior Court, and no subpoena in respect of civil proceedings may be served on any judge of a Superior Court, except with the consent of the Chief Justice or the President of the Supreme Court of Appeal, as the case may be.'

[2] The author of this judgment and Mashile J.

[3] Para. 3 of the order sought.

[4] Para. 5 of the order sought.

[5] The citing of retired Makgoba JP as to his alleged 'acting appointment' is not understood as he was not presiding in the matter.

[6] It is to be noted that the Legal Practice Act 28 of 2014 was assented to on 20 September 2014. Various provisions of the Act took effect in several stages and on 1 November 2018 all the remaining provisions of the Act finally came into operation. A Legal Practice Council (the LPC) was established which replaced the various provincial law societies. On the same date the Admission of Advocates Act 74 of 1964 was repealed. It is also from this date that the Limpopo Provincial Legal Council (the '"Provincial LPC") came into being and gained the authority and the obligation to perform its functions regarding legal practitioners in Limpopo Province.

[7] JP Makgoba (and, it appears, Judge Phatudi) was under the impression that Mr Maluleke was a member of the SAP whereas he was not. The SAP explains why it nevertheless decided to investigate the complaints. In the Founding Affidavit Mr Mokhare SC says: "3.5 The first respondent is not a member of the applicant and therefore the Constitution of the applicant is not applicable to him. The applicant can thus not subject him to its internal disciplinary process. However, the applicant retains the locus standi and power or right to launch an application of this nature with the Court to have any advocate who is not its member to be subjected to a disciplinary process by the Court in the form of a application to have the applicant struck from the roll, or suspended depending on the severity of the offence and/or allegations the applicant is accused of and same having been found by the Court to have been established on the balance of probabilities by the applicant. 3.6 This Court also has jurisdiction to hear and decide on this application because it exercises authority over all advocates who practice within its jurisdiction. 3.7 The first respondent was admitted by this Court, and he is practicing as an advocate within the jurisdiction of this Court."

[7] JP Makgoba (and, it appears, Judge Phatudi) was under the impression that Mr Maluleke was a member of the SAP whereas he was not. The SAP explains why it nevertheless decided to investigate the complaints. In the Founding Affidavit Mr Mokhare SC says:

"3.5 The first respondent is not a member of the applicant and therefore the Constitution of the applicant is not applicable to him. The applicant can thus not subject him to its internal disciplinary process. However, the applicant retains the locus standi and power or right to launch an application of this nature with the Court to have any advocate who is not its member to be subjected to a disciplinary process by the Court in the form of a application to have the applicant struck from the roll, or suspended depending on the severity of the offence and/or allegations the applicant is accused of and same having been found by the Court to have been established on the balance of probabilities by the applicant.

3.6 This Court also has jurisdiction to hear and decide on this application because it exercises authority over all advocates who practice within its jurisdiction.

3.7 The first respondent was admitted by this Court, and he is practicing as an advocate within the jurisdiction of this Court."

[8] The certificate would permit its holder to appear in the magistrate's courts and certain other designated bodies on behalf of

his or her principal.

[9] Malan v Law Society, Northern Provinces [2008] ZASCA 90; 2009 (1) SA 216 (SCA) para 4.

[10] Jasat v Natal Law Society 2000 (3) SA 44 (SCA) para 10.

[11] Jasat v Natal Law Society at 51E - F; Kekana v Society of Advocates of South Africa 1198 (4) SA 649 (SCA) at 654 D - F.

[12] The General Council of the Bar of South Africa v Geach and Others 2013 (2) SA 52 (SCA).at 125.

[13] Supra at para127.

[14] Supra at para 87.

[15] Para 26 of the judgment delivered on 08 October 2018.

[16] Ibid para 30.

[17] Ibid para 31.

[18] Ibid para 64.

[19] Ibid para 65.

[20] Ibid paras 78 and 79.

[21] My Reasons for judgment dated 11 April 2022.

[22] The first respondent in the application is Adv. Phetole Sekula (NO) and the second respondent the Limpopo Provincial Council of the LPC.

[23] Limpopo Legal Solutions and Another v Eskom Holdings SOC Ltd [2017] LACC 34.

[24] Ibid para 38.

[25] Van der Berg v General Council of the Bar of South Africa [2007] 2 All SA 499 (SCA) ([2007] ZASCA 16 at para 2.

[26] Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 620 (A) at 634E-635D.

[27] Mr Maluleke's founding affidavit in Tsundzuwka Kevin Maluleke v Advocate Phetole Sekhula (NO) and Legal Practice Council (Limpopo

Provincial Council) case number 01/2023 Limpopo Provincial Division, Polokwane, at paras 1.2 and 1.3.

[28] 'Restoring dignity to our courts: the duties of legal practitioners: Insulting, inappropriate, vulgar, and disparaging language have no place in litigation' an article in Groundup on 14 September 2022. By Rishi Seegobin. on its website 'groundup.co.org'.