THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable

Case No: 1112/2021

In the matter between:
PAULUS LEPEKOLA SAMUELS                                                APPELLANT

and

SOUTH AFRICAN

LEGAL PRACTICE COUNCIL
RESPONDENT

Neutral Citation:
Samuels v South African Legal Practice Council (formerly
Law Society of the Northern Provinces) (1112/2021)
[2022] ZASCA 175 (7 December 2022)
Coram:
PETSE DP and MOTHLE JA and DAFFUE, WINDELL and
SIWENDU AJJA
Heard:

19 August 2022
Delivered:
7 December 2022
Summary:
Attorneys Act 53 of 1979 – striking from the roll of attorneys,
notaries and conveyancers – whether the appellant should have been granted
a postponement for the hearing – whether the appellant’s fundamental right to
a fair hearing was infringed – whether the sanction imposed, namely striking-
off, was a justified sanction.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from: Gauteng Division of the High Court, Pretoria (Phahlane AJ
with Mokose J concurring, sitting as a court of first instance):
1. The appeal is upheld and the order of the high court is set aside.
2. The matter is referred back to the high court for determination by a
differently constituted bench.
3. The appellant shall pay the respondent’s costs of appeal.

_____________________________________________________________

JUDGMENT
______________________________________________________________

Mothle JA

[1] This is an appeal against an order granted on 17 June 2020 in the
Gauteng Division of the High Court, Pretoria (the high court), striking the
name of Paulus Lepekola Samuels (the appellant) from the roll of attorneys.
The order was granted following an application launched in the high court by
the Law Society of the Northern Provinces1 (the Law Society), cited as
respondent in this appeal. The application in the high court was launched in
terms of s 22(1)(d) of the then Attorneys Act 53 of 1979 (the Attorneys Act).2

[2] The following are background facts that triggered the application in the
high court. The appellant was admitted as an attorney on 19 November 1991.

1 Currently constituted as the South African Legal Practice Council since the Legal Practice
Act 28 of 2014 took effect on 1 November 2018.
2 The Attorneys Act has since been repealed and replaced by the Legal Practice Act 28 of
2014. Section 22(1)(d) of the Attorneys Act provides:
‘(1) Any person who has been admitted and enrolled as an attorney may on application by the
society concerned be struck off the roll or suspended from practice by the court within the
jurisdiction of which he practises –
. . .
(d) If he, in the discretion of the court, is not a fit and proper person to continue practice as an
attorney’.

Ms Lydia Mabaso (Ms Mabaso) of Johannesburg, had instructed the appellant
to act as her attorney in prosecuting a claim for compensation against the
Road Accident Fund (RAF). The claim was for damages arising out of injuries
she sustained in a motor vehicle accident on 26 December 2007. The
appellant and Ms Mabaso concluded a written contingency fee agreement,
entitling the appellant to receive twenty five percent (25%) of the proceeds of
the claim. The action against the RAF was set down twice for hearing in the
high court. At the first hearing in February 2014, a settlement agreement was
reached with the RAF for payment of the past medical expenses and general
damages in the amount of R170 657.40. At the second hearing, a year later
on 5 February 2015, the remaining part of the claim for the loss of earnings
was also settled in the amount of R206 300.60.

[3] It transpired from the complaint filed with the Law Society that
Ms Mabaso experienced difficulties in her attorney and client relationship with
the appellant. During the period between the two settlement agreements in
February 2014 and February 2015, and also after February 2015, Ms Mabaso
made repeated inquiries from the appellant concerning the payment of the
amounts settled at court with the RAF. In respect of both payments, the
appellant failed to account to her, repeatedly informing her that his office had
not received the payments due from the RAF. Dissatisfied with the appellant’s
response, Ms Mabaso, in both instances, inquired directly from the RAF, who
confirmed that payment of the February 2014 settlement had been made to
the appellant’s trust account in July 2014. When she conveyed that
information to the appellant, he informed her that he was not aware of the
payments made into his trust account and that he would verify. Four months
later, the appellant, in a letter dated 20 November 2014, confirmed to
Ms Mabaso that the payment of R170 657.40 had been received from the
RAF. He further informed Ms Mabaso that the amount ‘has been appropriated
to fees and disbursements and the balance of our fees and disbursements will
be taken from the last settlement of loss of earnings’. Ms Mabaso received no
compensation in respect of the first payment effected by the RAF.

[4] The payment in respect of the outstanding claim for loss of earnings
settled in February 2015 followed the same pattern. Ms Mabaso
unsuccessfully continued to make inquiries from the appellant about payment
from the RAF. Again she made inquiries to the RAF concerning the payment
of the February 2015 settlement. The RAF informed her, per email dated
1 July 2015, that the settled payment of R206 300.60 had been made to the
appellant’s trust account on 11 June 2015. When confronted again with this
information, the appellant confirmed receipt of the payment, but indicated that
‘the amount has not been cleared in our trust account as yet by the bank’ and
that he was waiting for the bill of costs from the cost consultants before
scheduling a meeting with Ms Mabaso. This was almost a month after
payment had been received. Ms Mabaso turned to Fluxmans Attorneys
(Fluxmans), requesting their assistance in getting the appellant to account to
her. From 10 July 2015, Fluxmans sent correspondence and reminder letters
to the appellant, which went unanswered. On 7 October 2015, Ms Mabaso
lodged a complaint with the Law Society against the appellant.

[5] The Investigating Committee of the Law Society (the Committee) sent a
letter dated 2 November 2015 to the appellant, and a reminder letter dated
9 December 2015, informing him of the complaint and requesting a response.
The appellant responded on 11 January 2016. On 29 June 2016, the
Committee, having considered the complaint and the appellant’s response,
decided to charge the appellant with contravention of various rules governing
the attorney’s profession.3 The Committee further recommended that the Law
Society’s Monitoring Unit must obtain consent from the then Council of the
Law Society (the Council) to conduct an inspection of the appellant’s
accounting records. The appellant was informed of these charges on

3The specific rules the Committee referred to are Rule 89.23, failure to reply to
correspondence from Fluxmans attorneys; Rule 68.8, the delayed payment of trust monies;
Rule 68.7, failure to timeously account to Ms Mabaso; Rule 89.30 failure to tax his account
timeously; and Rule 89.24 for overreaching Ms Mabaso. These Rules were made under the
authority of section 74 of the Attorneys Act 53 of 1979 and promulgated in the Government
Gazette 7164 of 1 August 1980, as amended. They are referred to as The Law Society of the
Northern Provinces (Incorporated as the Law Society of the Transvaal) Rules. Curiously, the
appellant was not charged for misleading Ms Mabaso about the payment on two occasions.

8 July 2016. Instead, on 27 July 2016, the appellant issued summons against
Ms Mabaso for an amount of one million rand (R1 000 000) for defamation,
arising from the fact that she had lodged a complaint with the Law Society, as
well as for allegedly having made disparaging statements against appellant in
the media, attacking his character.

[6] On 23 February 2017, the Law Society launched an urgent application in
the high court, for the appellant’s name to be struck from the roll of attorneys,
alternatively that he be suspended from practicing as an attorney. The
application consisted of two parts, Part A and Part B. Part A of the application
was placed on the roll of urgent applications (urgent court) and was heard on
23 March 2017. The judgment (per Tlhapi J) was delivered on 21 July 2017,
granting an order suspending the appellant from practising as an attorney with
ancillary relief, pending the hearing of Part B. The appellant, aggrieved by the
outcome, successfully applied for leave to appeal the order of suspension by
the urgent court and that order was granted on 12 March 2018. The appellant
duly lodged the appeal on 16 April 2018 to the Full Court. As at the hearing of
the appeal against the order in part B in this Court, the appeal against his
suspension in the Full Court lodged in April 2018 was still pending.

[7] Two years after the appellant noted and failed to prosecute the
suspension order on appeal, the Law Society placed Part B application, on
the normal high court roll of opposed matters, initially on 7 May 2019, where it
was postponed sine die. Thereafter on 15 October 2019 it was set down for
hearing on 30 April 2020. The high court adjudicated the matter on the
affidavits without hearing oral submissions, according to the Law Society’s
counsel, in terms of s 19(a) of the Superior Court Act 10 of 2013. The
high court judgment (per Phahlane AJ with Mokose J concurring) was
delivered on 17 June 2020. The high court ordered that the appellant’s name
be struck off the roll of attorneys. Almost a year later, on 27 May 2021, the
appellant unsuccessfully applied to the high court for leave to appeal. He
turned to this Court, which on 24 August 2021, granted him leave to appeal
the high court order in Part B. It is thus with leave of this Court that the appeal
came before us. I now turn to deal with the grounds of appeal in this Court.

[8] In the first ground of appeal, the appellant contended both in the notice
of appeal and in his heads of argument that the high court refused to grant
him a postponement of the proceedings. He contended further, invoking
s 34 of the Constitution4 that the refusal denied him his fundamental right to
have his case presented and argued in court. For the reasons that follow
hereunder, I am of the view that there is no evidence supporting this
contention.

[9] First, the notice of motion for Part B, which was to be heard in due
course on the normal or ordinary court roll, explicitly stated in paragraph 2
thereof, that if the appellant intends to oppose the application, he will be
required to notify the Law Society’s attorneys in writing thereof within 5 (five)
days after service of the application; and within 15 (fifteen) days of delivery of
the notice to oppose the application, to deliver his answering affidavit (if any)
together with any relevant documents. The appellant failed to notify the
Law Society of his intention to oppose Part B and failed to deliver an
answering affidavit within the time frames stated in the notice of motion. As at
the time the high court adjudicated the application some two and a half years
later, and when this Court considered the appeal, the appellant had neither
delivered any notice to oppose nor an answering affidavit in respect of Part B.
He was thus not on record as opposing Part B of the application.

[10] Second, on 15 October 2019, almost two years after the suspension
order under Part A, the Law Society delivered a notice of set down of Part B,
scheduled for hearing the following year on 30 April 2020. Approaching the
date of hearing for Part B, the lackadaisical conduct of the appellant became
evident. Notwithstanding his career being at risk, and having been notified on
15 October 2019 of the date of hearing, six months in advance, the appellant
only appointed his attorneys on 3 March 2020, barely a month before the

4 Section 34 of the Constitution reads:
‘Everyone has the right to have any dispute that can be resolved by the application of law
decided in a fair public hearing before a court or, where appropriate, another independent and
impartial tribunal or forum.’

hearing. He failed to take the high court and also this Court, into his
confidence by providing reasons as to why he had delayed appointing an
attorney. As a consequence of failing to appoint an attorney timeously, he
failed to file his heads of argument on or before 14 April 2020 as was required
of him. By his own conduct, he was not ready for the high court hearing. The
appellant’s only answering affidavit was that which had been considered by
the urgent court in Part A.

[11] Third, by 15 April 2020 and due to the outbreak of the Covid-19
pandemic, the country had been under level 5 lockdown.5 On 21 April 2020,
nine days before the hearing, Mr John Njau (Mr Njau) of Röntgen and
Röntgen Inc, the appellant’s attorneys, addressed an email to the
Law Society’s attorneys, requesting their consent to a postponement of the
hearing. The Law Society’s attorneys informed him to deliver a substantive
application for postponement, which the appellant’s attorney failed to do. On
23 April 2020, Mr Njau wrote an email to the presiding Judge, Madam Justice
Mokose (Mokose J), requesting a postponement of the hearing of Part B.
Mokose J replied through her secretary that in the absence of a substantive
application for a postponement, she was unable to accede to the request. The
appellant failed to deliver a substantive application for postponement.

[12] Fourth, this Court in Malan and Another v Law Society, Northern
Provinces,6 held thus:
‘A court of appeal has limited powers to interfere with a decision of the court of first
instance. In relation to the first leg of the inquiry, which is factual, appeals are subject
to the general limitation that courts of appeal defer to the factual findings of courts of
first instance (R v Dhlumayo and Another 1948 (2) SA 677 (A). This rule has limited,
if any, application if the court of first instance decided the case on paper, i.e. in

5 The lockdown was effected under the Regulations promulgated in terms of the Disaster
Management Act 57 of 2002. It restricted movement of persons in order to contain the spread
of the Coronavirus disease 2019 (Covid-19) which is a contagious disease caused by the
virus, the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2).
6 Malan and Another v Law Society, Northern Provinces [2008] ZASCA 90; 2009 (1) SA 216
(SCA); (2009) 1 All SA 133 (SCA) para 12.

application proceedings, because in such a case the court of appeal is in as good a
position to judge the facts as was the court below…’ (My emphasis.)
Having alleged that the high court failed to give him an opportunity to present
his case, this Court is in as good a position as the high court to afford the
appellant a hearing. The appellant and his legal representatives are presumed
to be aware of this legal principle. After this Court had granted him leave to
appeal, the appellant failed to deliver, with leave of this Court, a detailed
affidavit on a new matter in which he sets out the factual evidence of the
high court’s alleged refusal to grant him a postponement in order for him to be
heard. He also failed to deliver an answering affidavit for Part B of the
hearing, in light of the bald denials in his answering affidavit before the urgent
court, to the serious charges levelled against him by the Law Society. He
failed to present his defence to this Court.

[13] Fifth, the high court, in refusing the appellant’s application for leave to
appeal the order under Part B, expressed its view on the appellant’s conduct
concerning the pending appeal against the order of his suspension as follows:
‘(3) It is common cause that the application for leave to appeal in that matter had
lapsed for more than two years and when it was revived, the matter was postponed
for the applicant to file his papers and that was not done. It is also common cause
that at the time of obtaining the date of 1 December 2021 for the hearing of that
matter, the correct procedure had still not been followed in that the heads of
argument and practice note had not been filed.’ (My emphasis.)

[14] The preceding paragraphs amply demonstrate that the appellant was
set on delaying the expeditious conclusion of this matter for as long as it
would take. First, he put his suspension on hold by lodging an appeal he was
not prepared to prosecute for two years. Second, he lurched on the Covid-19
lockdown, in an attempt to secure a postponement of the Part B application,
when in fact, even after two years, he was still not on record as intending to
do so. The appellant tendered no explanation as to why he did not deliver a
substantive application for postponement. It is thus reasonable to infer that
the appellant failed to deliver a substantive application for postponement,
because he had no valid reasons to place before the high court in support

thereof. The appellant was not honest with the high court and in particular with
this Court. In this regard, I refer to the remarks of Malan JA in Law Society,
Northern Provinces v Sonntag (Sonntag), where he wrote:
‘The conduct of the respondent [the attorney] in defending the charges brought
against her was wholly unsatisfactory . . . The various defences and the manner in
which they were raised by the respondent cannot be said to evince complete honesty
and integrity.’7
For the reasons aforesaid, the ground of appeal that the high court denied him
an opportunity to present his defence, has no merit and it falls to be rejected.

[15] The appellant contended in the second ground of appeal that the
high court application was launched contrary to an agreement he had with the
legal officer of the Law Society. He stated that he had agreed with the
Law Society that any matter concerning the complaint lodged by Ms Mabaso,
including the decision by the Council to authorise an inspection of his
accounting records, would be held in abeyance, pending the adjudication of a
defamation action he had instituted against Ms Mabaso. Put differently, the
appellant’s argument was that the defamation matter rendered the entire
investigation of the complaint by Ms Mabaso sub judice.

[16] The sequence of events shows that the Committee concluded its
investigation and informed the appellant, on 8 July 2016, that it had
recommended that he be charged with contravention of the various rules
governing the profession. Further, that the matter be referred to the
Monitoring Unit. In turn, the Monitoring Unit would obtain consent from the
Council to inspect the appellants accounting records. On 11 July 2016, the
appellant requested the Law Society to allow him to consult with Ms Mabaso
as she had called ‘to set up an appointment to resolve the matter amicably…’.
The consultation never materialised. Instead, on 27 July 2016, the appellant
issued defamation summons against Ms Mabaso. It appears from the

7 Law Society, Northern Provinces v Sonntag [2011] ZASCA 204; 2012 (1) SA 372 (SCA)
para 18.

correspondence between the appellant and the Law Society that the parties
agreed to hold the file of the complaint in abeyance; but the Law Society did
not agree with appellant’s view as regards the inspection of his accounting
records.

[17] The Council, acting in terms of s 78(13) of the Attorneys Act,8 obtained
information from the bank that indicated that there was a deficit in the
appellant’s trust accounts. This is the kind of evidence which in the ordinary
course enjoins the Council to intervene and perform its statutory functions to
protect the public from the possible misappropriation of funds entrusted to an
attorney. It concerned an inspection of the accounting records as a whole,
and not only those relating to Ms Mabaso. The inspection of the appellant’s
accounting records is not remotely related to the defamation suit and would
not be a matter that is germane to the defamation suit. It is thus not sub judice
in the action for defamation pending against Ms Mabaso. The appellant
persisted in his sub judice view, clearly as a ruse to obstruct any inspection of
his accounting records. The appellant was steadfast in his refusal to co-
operate and dared the Law Society to obtain a court order to inspect his
accounting records, which he promised to oppose. Similarly, this ground of
appeal is unmeritorious and should be rejected. I now turn to consider the
merits of the charges denied by the appellant.

[18] It is trite that the nature of the applications to inquire into the conduct of
an attorney amount to a disciplinary enquiry that is sui generis. It is a three-
step process. In Jasat v Natal Law Society, this Court explained the three-
step-process thus: ‘First, the court must decide whether the alleged offending
conduct has been established on a preponderance of probabilities, which is a factual
inquiry. . . The second inquiry is whether, as stated in section 22 (1)(d), the person
concerned “in the discretion of the Court” is not a fit and proper person to continue to

8 Section 78(13) of the Attorneys Act provided: ‘(13) Any banking institution or building society
at which a practitioner keeps his trust account or any separate account forming part of his
trust account shall, if so directed by the council of the society of the province in which such
practitioner is practicing, furnish the council with assigned certificate which indicates the
balance of such account at the date or dates stated by the council.’

practice . . . It would seem clear, however, that in the context of the section, the
exercise of the discretion referred to involves in reality a weighing up of the conduct
complained of against the conduct expected of an attorney and, to this extent, a
value judgment . . . The third inquiry is whether in all the circumstances the person in
question is to be removed from the roll of attorneys or whether an order suspending
him from practice for a specified period will suffice.’9

[19] The following facts established, as the high court found, on a
preponderance of probabilities, the appellant’s serious acts of misconduct. In
the first instance, the appellant failed to account fully to Ms Mabaso for the
payment received in July 2014 from the RAF in the amount of R170 657.40.
Further, and by his own admission, the appellant had appropriated that
amount when the contingency fee agreement with Ms Mabaso was in place,
and, in terms thereof, the appellant was only entitled to a fee of 25%, being
R42 664.35. Almost a year after the receipt of that payment, Ms Mabaso
received a letter from the attorneys of Bonitas Medical Fund, informing her
that an amount of R19 444.01 was still due, being the costs of the past
medical treatment after the accident. The appellant could not explain why that
amount had not been paid, considering that the payment received from the
RAF was in part, for past medical expenses and his earlier assertion that the
money was appropriated towards fees and disbursements. Consequently, it
can reasonably be inferred that the amount of R170 657.40 had been
misappropriated.

[20] The appellant also failed to account to Ms Mabaso in regard to the
second payment received from the RAF in 2015. He withheld this amount,
informing Ms Mabaso that he would first submit for taxation the bill of costs
that he had prepared. When Ms Mabaso insisted on payment, he relented and
sent her a cheque by registered post in the amount of R123 800.33, at a time
when it appeared there were no longer sufficient funds in Ms Mabaso’s trust
ledger account. The bill of costs had not been taxed and the fate of the

9 Jasat v Natal Law Society 2000 (3) SA 44 (SCA); [2000] 2 All SA 310 (SCA) para 10.

balance of the amount paid by the RAF, including the costs of suit paid by the
RAF, was not disclosed.

[21] The appellant also obstructed the Council from inspecting his practice
account records. The view he held that such an inspection was sub judice
because of the defamation action he had instituted was self-serving and
dishonest. This Court in Sonntag held that conduct that amounts to
obstructionism and dishonesty during a disciplinary process cannot be
countenanced. An attorney who is a respondent in a disciplinary matter is
expected, as an officer of the court, to put the facts fully and candidly before
the court. Bald denials, evasions and obstructionism have no place in such
matters. In Sonntag the Court set aside the high court’s suspension order and
instead ordered that the name of the respondent be struck from the roll of
attorneys.

[22] The information obtained by the Council from the bank in terms of
s 78(13) of the Attorneys Act, allegedly disclosed deficits in the daily bank
balances of the appellant’s practice trust accounts. That averment was made
under oath by the Law Society. Serious as it is, it was met with a bare denial
from the appellant. To assert as he did in his answering affidavit before the
urgent court that the Law Society failed to attach a copy of the balances, does
not assist his case. In addition, by stating that the bank refused to provide the
Law Society or the Monitoring Unit the stated balances, without attaching a
letter from the bank to that effect, does not assist his case. One would have
expected the appellant, in support of his denial, to attach bank statements to
the contrary.

[23] The appellant failed to point to any evidence in the record that
contradicted the facts stated in the preceding paragraphs. The high court
found, correctly so, that the appellant was guilty of contravening the
provisions of the Attorneys Act and the Rules of the profession. No cogent or
persuasive argument to the contrary, was submitted before this Court, that on

a preponderance of probabilities, the appellant’s offending conduct had not
been established.

[24] I have had the opportunity of reading the second judgment of my
colleague Daffue AJA, concerning the alleged breach of appellant’s right to be
heard as provided in s 34 of the Constitution. For the reasons stated and
those that follow hereunder, I respectfully disagree with the reasoning, the
conclusion as well as the order proposed in the second judgment.

[25] In concluding that the high court denied the appellant the right to be
heard, the second judgment refers to s 34 of the Constitution and relied
extensively on case law on the subject. However, the case law authorities
cited are not applicable in this instance, due to the absence of evidence, ie
factual averments made on oath and presented as evidence in this Court.

[26] It is an incontrovertible fact that since the application was heard in the
urgent court in 2017, none of the parties has delivered further affidavits or
admissible statements on any factual allegation. The appellant merely relied
on statements made in the appellant’s notice of appeal, heads of argument
and a collection of emails inserted in the appeal record. The emails are not
marked as attachments to any affidavit deposed to either by the appellant,
Mr Njau or any witness. The emails are neither verified as true copies of the
originals, nor submitted as constituting proof of the entire communication
between the appellant and Mokose J in the high court. In application
proceedings, documentary evidence is submitted on affidavit, otherwise it
remains inadmissible as evidence. This Court in Minister of Land Affairs and
Agriculture v D & F Wevell Trust10 stated at para 43 thus:
‘… It is not proper for a party in motion proceedings to base an argument on
passages in documents which have been annexed to the papers when conclusions
sought to be drawn from such passages have not been canvassed in the affidavits.

10 Minister of Land Affairs and Agriculture and others v D & F Wevell Trust [2007] SCA 153
(RSA); 2008 (2) SA 184 (SCA) para 43.

The reason is manifest – the other party may well be prejudiced because evidence
may have been available to it to refute the new case on the facts. The position is
worse where the arguments are advanced for the first time on appeal. In motion
proceedings, the affidavits constitute both the pleadings and the evidence: Transnet
Ltd v Rubenstein, and the issues and averments in support of the parties’ cases
should appear clearly therefrom.’ (My emphasis.)

[27] Consequently, the entire narrative or version of the appellant on this
ground of appeal, is inferred from emails improperly inserted in the record, in
breach of an established authority of this Court in Wevell Trust. There is
therefore no factual evidence on which this Court could apply the authorities
on s 34 of the Constitution as they are cited in the second judgment.  The
appellant has failed to set out his case on affidavit, which would constitute
both pleadings and evidence in support of this ground of appeal.

[28] In any event, even if the emails were admissible, they do not provide
proof that the appellant was denied a right to be heard. There were about
six emails included in the record, some of which are dealt with in
paragraph 11 of this judgment. Of importance, is the second, fourth, fifth and
sixth emails. In the second email, dated 23 April 2020 at 12:32, and sent to
Mokose J, Mr Njau requested a postponement of the hearing scheduled for
30 April 2020. I will return to the content of this email later in this judgment.
Mokose J’s reply was in the third email dated 28 April 2020 at 13.35, sent by
her secretary, Ms Shirley Ontong (Ms Ontong). Mokose J said that she is
unable to accede to the request due to the absence of a substantive
application for a postponement. The fourth email, initiated by Ms Ontong and
dated 28 April 2020 at 00.56, was in reply to an email from Mr Njau, which is
not attached and the content thereof is not known. In that email Ms Ontong
mentions for the first time that according to Mokose J, the matter will proceed
by ‘zoom’ (a virtual platform). She ended the email by indicating to Mr Njau
that she will be in further contact with him. True to her word, the fifth email
came on 29 April 2020 from Ms Ontong, wherein she requested Mr Njau to
send her ‘the contact detail for tomorrow’s zoom meeting’. In the sixth and last

email on the same day, Mr Njau sent Mr Röntgen’s cellular phone number to
Ms Ontong. (My emphasis).

[29] As stated, I return to the second email sent by Mr Njau to Mokose J on
23 April 2020, seven days before the hearing. In that two-page email,
Mr Njau, on behalf of the appellant, requested that the high court grant a
postponement of the hearing. It should be recalled that as at that date, the
appellant had neither delivered a notice to oppose Part B, an answering
affidavit for Part B nor the heads of argument that were due on 14 April 2020.
The second email states that the appellant’s attorneys were appointed on
3 March 2020. Further, that Mr Röntgen, aged 85, and apparently the attorney
dealing with the appellant’s matter, was a high-risk person to contract the
Covid-19 virus. In particular, the fourth paragraph on the second page of the
email reads:
‘As indicated above your Ladyship, Mr Röntgen Senior has no access to email facility
no computer infrastructure at his place of residence hence unable to prepare and
draw up a Substantive Application for Postponement and have same served and
filled before your Ladyship for your Ladyship consideration as requested by the Rules
of court. To this end, and with respect we plead therefore that your ladyship
dispensed with the Rules of Court relative to service and process of the Application
for Postponement so that the Respondent’ Application can be considered on the
strength of this email’ (My emphasis).

[30] From the emails discussed above, I make the following observations.
First, the proposal for the ‘meeting via zoom’ was an initiative of the
high court, not of the appellant. Second, the proposed zoom meeting came
after Mokose J had declined to consider the appellant’s request for
postponement in the form of an email. Third, in the second email, it is
important to note that the appellant neither requested audience with the court
in any manner or form nor a case management as an alternative, in terms of
the Covid-19 Directives of the Judge President, Gauteng Division of the
High Court. Fourth, when in the fifth email the Judge’s secretary requested
contact details necessary to establish a link for the zoom meeting, she was
provided with a cellular phone number of Mr Röntgen, and not an email

address. According to the second email as quoted in the preceding
paragraph, Mr Röntgen senior had no access to email and a computer, both
necessary for a virtual hearing; therefore, the high court did not receive an
email address for the link to be established. Fifth, the exigency of the
application for postponement was contrived, as the pandemic restrictions at
that time, had been in place for more than a month. Sixth, there is no
evidence why Mr Njau’s email address was not used. Seventhly, apart from
the first and second emails; no other email, either from Mr Njau or the Judge’s
secretary, was copied to Rooth & Wessels for the Law Society as a party in
the matter. Lastly, the last sentence of the quote in the preceding paragraph
from the second email, amply demonstrates that Mr Njau did not expect to
appear in court. He pleaded that the application for postponement be
considered on the strength of that email.

[31] There is no mention in the emails or any affidavit as to why Mr Njau
and/or the appellant did not attend court personally or request a
teleconference with the judges, linking all participants on 30 April 2020, to
plead for the postponement. It is a fact that the courts were open for litigants
as per the Directives that had been issued by the Chief Justice on
19 March 2020.11 In addition, the second judgment makes reference to the
Judge President’s Directives and correctly records that there were options
available for a litigant to access the court. There is no factual allegation, less
so on affidavit, as to which of these options were exercised by appellant and
rejected by the high court.  It must be emphasised that the high court neither
granted nor dismissed or refused the request for postponement. The
high court declined to consider an application for postponement lodged by
email. There are no rules of court or directives that provided for this manner of
lodging any application.

[32] In essence, my respectful disagreement with the second judgment
stems from the following: first, the allegation by the appellant that he was

11 See GN 187, GG 43117, 19 March 2020.

denied a postponement is false. The high court did not make a ruling to grant
or deny the postponement. Mokose J took issue with the request being
communicated by email. Second, the allegation that the appellant was denied
a hearing, was made not on affidavit, but in the notice of appeal and heads of
argument, both not constituting pleadings and evidence in motion
proceedings. This ground of appeal was thus not pleaded in accordance with
the established authority by this Court in Wevell Trust.12Third, the content of
the emails, for reasons stated in paras 30 and 31 of this judgment, do not
make out a case that the appellant was denied a hearing. The appellant,
assisted by Mr Njau, was in communication with the Judge and also had the
benefit of the Directives at his disposal, which he inexplicably failed to utilise.

[33] The high court found that the appellant’s conduct raised a serious
question about his fitness to continue practicing as an attorney. As counsel for
the Law Society submitted, an attorney is expected to scrupulously observe
and comply with the provisions of the Attorneys Act and Rules of the
profession. In Heppell v The Law Society of the Northern Provinces,13 this
Court held that an attorney is a member of a learned, respected and
honourable profession and by entering it, pledges himself with total and
unquestionable integrity to society at large, to the courts and the profession.
The law expects from an attorney uberrima fides – highest possible degree of
good faith – in his dealings with his client, the public and the courts. This
implies that an attorney’s conduct, submissions and representations must at
all times be accurate, honest and frank. The appellant’s conduct fell short of
the professional standards expected of an attorney. Considering the
conspectus of the evidence, the appellant’s conduct ineluctably impels a
finding that he is not a fit and proper person to continue practicing as an
attorney.

12 Para 26 of this judgment, Footnote 10.
13 Heppell v Law Society of the Northern Provinces [2017] ZASCA 119 para 12.

[34] The charges against the appellant are serious in the extreme.
Appropriating trust monies and being unable to account therefor could well be
an offence of either theft or fraud. The public must have confidence that the
monies entrusted to an attorney will be handled lawfully and in the interests of
the attorney’s clients. Consequently, the courts must protect the public from
attorneys who are found to have misappropriated trust funds. After all it is the
court’s duty owed to the public to satisfy itself that an applicant for admission
to the profession is a proper person to be allowed to practice and that
admitting him or her to the profession (and allowing him or her to remain in
the profession) does not pose any ‘danger to the public and to the good name
of the profession’.14 For the reasons stated above, I am of the view that the
order by the high court, to have the name of the appellant struck from the roll
of attorneys, is appropriate. In my view, based on the reasons stated, the
appeal must therefore fail.

[35] It is necessary briefly to say something about the costs. It is now well
established that the Law Society is not an ordinary litigant because in bringing
proceedings of the kind in issue here, it performs a public duty.15 Therefore, it
is not equitable that its members, who fund it, should have to pay for the costs
incurred in litigation in the public interest especially where it is the successful
party.

[36] ln the result, I would have dismissed the appeal with costs on an
attorney and client scale.

____________________
SP MOTHLE
JUDGE OF APPEAL

14 Ex parte Knox 1962 (1) 778 (N) at 784.
15 See, for example, Incorporated Law Society v Taute 1931 TPD 12 at 17; Solomon v Law
Society of the Cape of Good Hope 1934 AD 401 at 408-409.

Daffue AJA (Windell AJA concurring):

[37] I have had the pleasure of reading the judgment of my colleague,
Mothle JA (the first judgment). I have no quibble with the first judgment’s
exposition of the facts, nor the summary of the legal principles applicable.
Unfortunately, for the reasons set out below, I am unable to agree with the
decision regarding the outcome of the appeal. In my view, the appeal must
succeed and the matter should be referred back to the high court insofar as
the appellant’s right to a fair public hearing before a court of law in terms of
s 34 of the Constitution had been violated.

Right to a fair trial
[38] In the first judgment it was concluded that the appellant: (a) conflated
Parts A and B of the notice of motion; (b) did not, as a matter of fact, oppose
Part B; and (c) neglected to file an answering affidavit in that regard, and was
‘thus not on record as opposing Part B of the application’. I respectfully
disagree. Firstly, there was no need for the appellant to file a further
answering affidavit. The full set of application papers (founding, answer and
replying affidavits) were already before the high court when it dealt with Part
B, as was the case in the Part A proceedings. The appellant would not have
had the right to file a second answering affidavit, unless he asked for and
obtained leave from the high court to file a supplementary affidavit. Secondly,
it is clear from a reading of the answering affidavit that the appellant was
opposing both Part A and Part B of the application. The Law Society filed one
founding affidavit in support of both Part A and Part B and the appellant
responded thereto. Thirdly, the high court should have been well aware of the
fact that Part B of the application was opposed and that the appellant wanted
the opportunity to be heard. I say so for the following reasons.

[39] A national lockdown was announced from 26 March 2020 to 16 April
2020. All non-essential activities were suspended and only essential services
remained available. Legal services were not classified as essential services.

This initial period of 21 days was later extended to 30 April 2020, the date on
which the opposed striking-off application was to be heard. Several problems
were experienced by the appellant’s new attorney, in particular, and that
attorney’s firm, in general. This led to a written request to the Law Society’s
attorneys for postponement of the application on 21 April 2020. The Law
Society was not willing to accede to a postponement and insisted that a
formal application be moved.

[40] As a result, on 23 April 2020, a week before the hearing, a member of the
appellant’s new firm of attorneys, sent an email to the senior presiding judge’s
secretary, seeking a postponement. It was explained that the attorney dealing
with the matter did not have proper email facilities, nor did he have the
necessary infrastructure at home to prepare and draft a substantive
application for postponement. Full details were provided to the judge to
explain why a postponement was sought. The appellant’s application for a
postponement was in line with the Practice Directive of the Gauteng Provincial
Division dated 8 April 2020, which was issued during level 5 of the national
lockdown. This Practice Directive stated that ‘should parties be unable to
reach an agreement (pertaining to postponements), either party may request
that the matter be placed before a case management judicial officer in order
to facilitate the expeditious re-enrolment of the matter’. In my view, such a
directive is indicative of an intention not to subject litigants to substantive and
formal applications for postponement during the lockdown period.

[41] In any event, the high court considered the correspondence between the
parties and was therefore aware that the appellant was informally seeking a
postponement of the striking-off application which was set down for hearing
on 30 April 2020. The senior judge’s secretary responded the next day by
email, attaching the judge’s note directing that a formal application for
postponement was required. On 28 April 2020, the secretary informed the
appellant’s attorney in an email that the striking-off application was to be
heard on 30 April 2020 by making use of the Zoom virtual conferencing
platform. The next day, on 29 April 2020, the secretary requested the relevant

contact details of the appellant’s attorney, and the attorney’s cell phone
number was provided to her. In the email the secretary also advised the
attorney that she ‘will keep in touch’ with him the next day.

[42] Notwithstanding this communication, the appellant’s attorney was never
invited to a virtual hearing, nor was he contacted telephonically. As a result,
the appellant was not allowed the opportunity to either formally ask for a
postponement or present arguments in respect of the merits of the dispute.
Moreover, no virtual hearing was conducted as anticipated. Mr Groome,
counsel on behalf of the respondent, confirmed during oral argument before
this Court that he also waited to be invited to the Zoom hearing, but that he
never received a link nor was he called upon to address the court.

[43] On the appellant’s version, no further correspondence was received from
the court until 15 June 2020 (six weeks later), when the parties were
requested to send a draft order to the judges. In its judgment delivered on 17
June 2020 the high court stated that the ‘matter was decided on the papers
after the parties were timeously informed by the court that the matter would be
dealt with on the papers’ and that the appellant ‘had at the time, decided not
to file any papers to oppose the application’. The high court held that it was
satisfied:
‘. . . that [the Law Society] has complied with the Practice Directives for setting
down the opposed matter, and that despite this, [Mr Samuels] chose not to
appear and present his case before the court. Accordingly, this Court was of
the view that no substantive application for a postponement had been
received and as such, proceeded with the application.’ (Emphasis added.)
It further observed, with reference to the Practice Directive:
‘The Practice Directive therefore makes it clear that [Mr Samuels] had an
opportunity open to him to approach the court and have the matter placed
before judicial case management or present his arguments before court on 30
April 2020 through [virtual] platforms or other electronic means of hearing of
matters, as has been the practice of this Division since the beginning of the

lockdown period, to accommodate and entertain all the matters that have
been placed on the roll for hearing.’ (Emphasis added.)

[44] The high court’s findings are clearly wrong for three reasons. One,
although it acknowledged that the matter was opposed, it is not correct that
the appellant ‘chose not to appear and present his case before the court’.
Neither the appellant nor the Law Society was informed that the application
would be dealt with ‘on the papers’ and without the benefit of oral argument.
In fact, the high court informed the appellant’s attorney and the Law Society’s
counsel that the matter will be heard virtually on the Zoom platform. Two, the
high court was not entitled to deal with the matter ‘on paper’ without hearing
oral argument. It is only in terms of s 19(a) of the Superior Courts Act 10 of
2013 (Superior Courts Act) that a high court exercising appeal jurisdiction has
the power to dispose of an appeal without hearing oral arguments. Then, in
dealing with the matter ‘on paper’, the high court failed to consider the
appellant’s answering affidavit and erroneously found that the appellant ‘failed
to place any evidence’ before it to challenge the Law Society’s allegations
‘which remained undisputed’. As set out above, the appellant filed an
answering affidavit in opposition of Part A and Part B of the application.
Three, the appellant was not given an opportunity to ‘present his arguments
before court on 30 April 2020 through [virtual] platforms or other electronic
means of hearing of matters’. The matter was not heard in open court and it
was impossible for the appellant or his legal representative to present a case
to the high court when they were not invited to a virtual hearing.

[45] Section 34 of the Constitution provides that ‘[e]veryone has the right to
have any dispute that can be resolved by the application of law decided in a
fair public hearing before a court or, where appropriate, another independent
and impartial tribunal or forum’. In addition, s 32 of the Superior Courts Act
reads as follows:
‘Save as is otherwise provided for in this Act or any other law, all proceedings
in any Superior Court must, except insofar as any such court may in special
cases otherwise direct, be carried on in open court.’

[46] The reference to ‘all proceedings’ includes argument by or on behalf of
the litigants.16 This is the default position. In Esau and Others v Minister of
Cooperative Governance and Traditional Affairs and Others,17 this Court
confirmed that the rule of law, a founding value of our constitution, applies in
times of national crisis as much as it does in more stable times.

[47] In De Lange v Smuts N O and Others (De Lange),18 Mokgoro J reiterated
that everyone has the right to state his or her own case, ‘not because his or
her version is right, and must be accepted, but because in evaluating the
cogency of any argument, the arbiter, still a fallible human being, must be
informed about the points of view of both parties in order to stand any real
chance of coming up with an objectively justifiable conclusion that is anything
more than chance’.19 In Western Cape Education Department and Another v
George,20 Howie JA emphasized that it is desirable that a judgment should be
the product of thorough consideration of, inter alia, forensically tested
argument from both sides on questions that are necessary for the decision of
the case.21 And in Pepkor Holdings Ltd and Others v AJVH Holdings (Pty) Ltd

16 Transvaal Industrial Foods Ltd v BMM Process (Pty) Ltd [1973] 2 All SA 148 (A); 1973 (1)
SA 627 (A) at 628E-H.
17 Esau and Others v Minister of Cooperative Governance and Traditional Affairs and Others
[2021] ZASCA 9; [2021] 2 All SA 357 (SCA); 2021 (3) SA 593 (SCA) para 5.
18 De Lange v Smuts N O and Others 1998 (3) SA 785 (CC); 1998 (7) BCLR 779 (CC) para
131; S v Mabena and Another [2006] ZASCA 178; [2007] 2 All SA 137 (SCA); 2007 (1) SACR
482 (SCA) para 2.
19 In Independent Newspapers (Pty) Ltd v Minister for Intelligence Services: In re Masetlha v
President of the Republic of South Africa and Another [2008] ZACC 6; 2008 (5) SA 31 (CC);
2008 (8) BCLR 771 (CC) para 39, Moseneke DCJ affirmed the principle of open justice as
follows: ‘There exists a cluster or, if you will, umbrella of related constitutional rights which
include, in particular, freedom of expression and the right to a public trial, and which may be
termed the right to open justice. . . Section 34 does not only protect the right of access to
courts but also commands that courts deliberate in a public hearing. This guarantee of
openness in judicial proceedings is again found in section 35(3)(c) which entitles every
accused person to a public trial before an ordinary court’.
20 Western Cape Education Department and Another v George [1998] ZASCA 26; 1998 (3)
SA 77 (SCA) at 84E; [1998] 2 All SA 623 (A).
21 See also Public Servants Association obo Ubogu v Head, Department of Health, Gauteng
and Others [2017] ZACC 45; 2018 (2) BCLR 184 (CC); 2018 (2) SA 365 (CC). At para 62 the
Constitutional Court confirmed that the right to a fair public hearing before a court not only
guarantees everyone the right to have access to courts, but also constitutes public policy.

and Others,22 this Court stated the following with reference to s 34 of the
Constitution:
‘. . . [T]he failure . . . to grant the appellants an opportunity to make written or
oral submissions on the draft order . . . was inappropriate and likely to bring
the administration of justice into disrepute. The submission has merit. It is
axiomatic that a hearing should be fair. This lies at the heart of our system, is
common sense and is enshrined in the Constitution. As the litigants, the
appellants should have been given an opportunity to raise with the court, any
concerns they might have had in relation to the draft order. Secondly, as part
of the decision-making process, their legal representatives were entitled to
make written or oral submissions regarding the draft order. This may well
have obviated the need for an appeal. The issuance of the order in the
circumstances is regrettable.’23

[48] Recently, in Morudi and Others v NC Housing Services and Development
Co Ltd and Others (Morudi),24 the Constitutional Court held that it must follow
that when the high court granted an order sought to be rescinded without
being prepared to give audience to the applicants, it ‘committed a procedural
irregularity’ which was ‘no small matter’. It held that the court ‘effectively
gagged and prevented the attorney of the first three applicants – and thus
these applicants themselves – from participating in the proceedings’, which
constituted a ‘serious irregularity as it denied these applicants their right of
access to court’.

[49] With these principles in mind the question to be considered is whether the
appellant was denied the right to a fair public hearing as provided for in s 34
of the Constitution, and if so, what the consequences are. The fundamental
principle that courts must be open and accessible, as provided for in s 34 of

22 Pepkor Holdings Ltd and Others v AJVH Holdings (Pty) Ltd and Others; Steinhoff
International Holdings NV and Another v AJVH Holdings (Pty) Ltd and Others [2020] ZASCA
134; [2021] 1 All SA 42 (SCA); 2021 (5) SA 115 (SCA).
23 Ibid para 14.
24 Morudi and Others v NC Housing Services and Development Co Ltd and Others [2018]
ZACC 32; 2019 (2) BCLR 261 (CC) para 33.

the Constitution and s 32 of the Superior Courts Act, was severely challenged
by the national lockdown as a result of the COVID-19 pandemic, especially
during level 5, which led to a significant limitation to hearings in physical court
rooms. The various divisions of the high court as well as this Court issued
Practice Directives concerning the functioning of the courts, including virtual
hearings through electronic teleconferencing platforms such as Zoom and
Microsoft Teams. As indicated, the parties in this case accepted that the
hearing of 30 April 2020 would not be in an open and physical courtroom, but
conducted through Zoom. They were, however, never invited to any virtual
hearing. In addition, the Practice Directive specifically stated, insofar as
opposed applications were concerned, that ‘the parties shall endeavour to
reach an agreement dispensing with oral argument and shall to that end,
inform the judicial officer presiding in the matter of their decision’. This is in
line with clauses 14 and 15 of the directives issued by the Chief Justice on 17
April 2020, published in Government Gazette no 43241 of 21 April 2020. No
such agreement was reached between the parties and they were never asked
whether the judges to whom the matter was allocated could deal with it on the
papers and without receiving oral arguments. It is impossible, and would be
highly speculative, to anticipate what could have happened during a hearing
attended to by the appellant, either personally or through his legal
representative.

[50] The high court, for the reasons set out above, committed a serious
procedural irregularity which resulted in a failure of justice. This is, as stated in
Morudi, no small matter. In De Lange, Mokgoro J said that the ‘interest
implicated will determine the standard of procedural fairness’.25 In that matter,
the interest implicated was the right to personal liberty and it was held that the
‘standard of procedural protection must be high’.26 In the present matter, the
order of the high court affects the status of the appellant, a professional
person and attorney in practice for over 30 years. In my view, the standard of

25 De Lange para 132.
26 Ibid.

protection afforded to the appellant should similarly be high. The first
judgment further remarked that the appellant could have applied for leave
from this Court to file a supplementary affidavit. That may be so, but the
failure to do so does not remedy the breach of the appellant’s constitutional
rights to a fair hearing. It would, therefore, be wrong to adjudicate the appeal
on the basis of the facts before us.

Costs
[51] Pertaining to costs it is accepted that a Law Society is generally entitled
to costs even if unsuccessful and usually on an attorney and client scale.27
Bearing in mind the appellant’s attitude towards the Law Society and his
approach to the litigation in general, he should bear the costs of appeal. In
order to ameliorate the appellant’s position and pertinently based on the
finding that he did not have a fair hearing, costs on a party and party scale
should be ordered and not the usual attorney and client costs.

Order
[52] The following order is granted:
1  The appeal is upheld and the order of the high court dated 17 June
2020 is set aside.
2   The application is referred back to the high court for determination by
a differently constituted bench.
3  The appellant to pay the respondent’s costs of this appeal.

_________________________

J P DAFFUE

ACTING JUDGE OF APPEAL

27 Law Society of the Northern Provinces v Dube [2012] ZASCA 137; [2012] 4 All SA 251
(SCA) para 33.

Petse AP (Siwendu AJA concurring):
[53] I have had the advantage of reading with interest the two judgments
penned by my colleagues, Mothle JA (the first judgment) and Daffue AJA (the
second judgment). Regrettably, I find myself in respectful disagreement with
the first judgment and its proposed outcome.

[54] Whilst I am in agreement with the ultimate conclusion reached in the
second judgment and the order it proposes, there are, however, aspects of
the second judgment to which I cannot subscribe without qualification.
Accordingly, I shall confine myself to what I consider to be at the core of this
appeal.

[55] The factual matrix has been set out in the first judgment, and elaborated
upon in the second judgment, in sufficient detail to conduce to a full
appreciation of what lies at the heart of this case. Thus, there will be little
virtue in rehashing the facts in this judgment. Bearing this in mind, I shall state
the reasons for my disagreement with the first judgment and the uneasiness I
have in relation to parts of the second judgment as briefly as possible.

[56] Insofar as the second judgment is concerned, it suffices to state that in
the view I take of the matter, the fact that the appellant’s fair hearing right
under s 3428 of the Constitution has been infringed puts paid to any contention
sought to be advanced by the respondent that notwithstanding this
infringement we ought to enter into the substantive merits of the appeal.

28 Section 34 of the Constitution of the Republic of South Africa Act 108 of 1996 reads:
‘Everyone has the right to have any dispute that can be resolved by the application of law
decided in a fair public hearing before court or, where appropriate, another independent and
impartial tribunal or forum.’

[57] As the Constitutional Court made plain in De Beer N O v North-Central
Local Council and South-Central Local Council and Others (Umhlatuzana
Civic Association Intervening):
‘This section 34 fair hearing right affirms the rule of law which is a founding
value of our Constitution. The right to a fair hearing before a court lies at the
heart of the rule of law. A fair hearing before a court as a prerequisite to an
order being made against anyone is fundamental to a just and credible legal
order.’29

[58] The fundamental importance of the fair hearing right, entrenched in s 34
of the Constitution, was again underscored by the Constitutional Court in
Twee Jonge Gezellen (Pty) Ltd v Land and Agricultural Bank of South Africa
t/a The Land Bank and Another 30 in which Brand AJ emphasised that ‘(t)he
importance of the fundamental right which is guaranteed in section 34’ was
beyond question.

[59] After posing the pertinent question as to whether ‘the appellant was
denied the right to a fair public hearing as provided for in s 34 of the
Constitution’ the second judgment emphatically answers that question in the
affirmative. In my respectful view, that should have been the end of the
matter. This is particularly so when regard is had to the fact that the second
judgment proposes to remit the case to the high court for the latter court to
then hear the dispute between the disputants anew.

[60] For its part, the first judgment proposes to dismiss the appeal with costs.
It does so, notwithstanding the fact that it accepts that the appellant was
effectively denied a hearing because the high court failed to fulfil its
undertaking, conveyed to the appellant a mere two days before the hearing, to
provide the appellant with a link to enable him to take part in the hearing

29 De Beer N O v North-Central Local Council and South-Central Council and others
(Umhlatuzana Civic Association Intervening) [2001] ZACC 9; 2002 (1) SA 429 (CC) para 11.
30 Twee Jonge Gezellen (Pty) Ltd v Land and Agricultural Bank of South Africa t/a The Land
Bank and Another [2011] ZACC 2; 2011 (3) SA 1 (CC) para 57.

virtually via electronic platforms like Zoom or Microsoft Teams, in line with the
directives issued by the Chief Justice on 17 April 2020 following the national
lockdown pursuant to the declaration of a national state of disaster under the
Disaster Management Act 57 of 2022.

[61] The first judgment explains its decision to adopt this rigid approach on the
basis that the appellant had not only been indolent but also lackadaisical,
given the gravity of the matter, by studiously avoiding to answer serious
allegations of impropriety levelled against him by the respondent. This,
notwithstanding the fact that he had ample time within which to do so. Having
elected to remain supine, the first judgment reasons, it can therefore hardly lie
in the mouth of the appellant to cry foul when the inevitable, ie having his
name removed from the attorneys roll, eventuated. Nor should he, so late in
the day, be permitted to invoke his fair hearing rights under s 34 of the
Constitution. Moreover, the common thread running through the first judgment
is that the appellant elected to adopt an obstructionist approach calculated to
delay the expeditious finalisation of the matter instead of pertinently
responding to the serious allegations against him.

[62] It may well be that the manner in which the appellant conducted his case
is deserving of the strictest censure. However, one thing is clear which is that
the appellant was determined to resist the relief sought by the respondent to
the hilt. Whether the defence that he mounted is good or bad does not matter
for present purposes. Thus, the appellant’s perceived dilatory conduct cannot
excuse the high court’s denial of the appellant’s fair hearing right.

[63] The crucial question that confronts us in this case is therefore whether
the high court violated the appellant’s right entrenched in s 34 of the
Constitution and thereby committed an irregularity of so serious a nature and
far-reaching proportions so as to vitiate the hearing that took place in his
absence. Whatever view one may have about the strength of the respondent’s
case and the weakness of the appellant’s answer thereto is for now of no
consequence. What is paramount for present purposes is that s 34
entrenches the right of everyone to, inter alia, have any dispute that can be

resolved by the application of the law decided in a fair public hearing before a
court.

[64] As Mokgoro J explained in De Lange v Smuts N O and Others,31 the right
accorded by s 34 is important for its own sake ‘not because [the person’s]
version is right, and must be accepted, but because in evaluating the cogency
of any argument, the arbiter, . . . must be informed about the points of view of
both parties in order to stand any real chance of coming up with an objectively
justifiable conclusion that is anything more than chance.’32

[65] To my mind, when the high court failed to fulfil its undertaking to the
appellant and afford him a hearing, it committed a serious procedural
irregularity. As Madlanga J aptly put it in Morudi and Others v NC Housing
Services and Development Co Ltd 33 the high court ‘effectively gagged’ the
appellant and prevented him from participating in the proceedings. This was
‘no small matter’. It was a serious irregularity that denied the appellant the full
extent of his right of access to court.

[66] One should never lose sight of the fact that it is a requirement of the rule
of law that when a person may be adversely affected by an exercise of public
power, which is what the exercise of judicial power entails, such a person is
entitled to be heard.34 In De Beer NO v North-Central Local Yacoob J put it
thus:
‘This s 34 fair hearing right affirms the rule of law, which is a founding value of
our constitution. The right to a fair hearing before a court lies at the heart of
the rule of law . . . courts in our country are obliged to ensure that the
proceedings before them are always fair . . . It is a crucial aspect of the rule of

31 De Lange v Smuths N O and Others [1998] ZACC 6; 1998 (3) SA 785 (CC) para 131.
32 See also: Independent Newspapers (Pty) Ltd v Minister for Intelligence Services: In Re
Masetlha v President of the Republic of South Africa and Another [2008] ZACC 6; 2008 (5)
SA 31 (CC) para 39.
33 Morudi and others v NC Housing Services and Development Co Ltd [2018] ZACC 32; 2019
(2) BCLR 261 (CC) para 33.
34 See in this regard: De Lange v Smuts NO and Others [1998] ZACC 6; 1998(3) SA 785 (CC)
paras 46 and 131.

law that court orders should not be made without affording the other side a
reasonable opportunity to state their case.’35

[67] In the context of the facts of this case it must go without saying that since
the appellant had unequivocally expressed a desire to be heard, the high
court breached one of the most fundamental procedural elements of the rule
of law. And as this Court observed in Transvaal Industries Foods Ltd v B MM
Process (Pty) Ltd 36 almost five decades ago:
‘. . . neither the court nor litigants should normally be deprived of the benefit of
oral argument in which counsel can fully indulge their forensic ability and
persuasive skill in the interests of justice and their client.’37

[68] Contrary to what the first judgment says, it is cold comfort to the appellant
to hold, as the first judgment does, that ‘this court was in as good a position
as the high court to afford him a hearing.’ If anything, to view the irregularity
committed by the high court in this light would be to trivialise a serious
irregularity that ‘was no small matter.’ In this regard, it bears mentioning that
as between the protagonists themselves, it is common cause that both of
them were not afforded the opportunity to be heard on 30 April 2022.
Accordingly, the appellant was well within his rights to invoke s 34 of the
Constitution, a complaint squarely raised both in his application for leave to
appeal to this Court and heads of argument in this appeal.

[69] It remains to deal briefly with the question of costs. Although the appellant
must succeed in this appeal, he should nevertheless bear the costs of the
appeal. In Incorporated Law Society v Taute38 the court there held that in
instances where a law society fails to prove charges against an attorney and

35 De Beer NO v North-Central Local Council and South-Central Council and Others
(Umhlatuzana Civic Association Intervening) [2001] ZACC 9; 2002 (1) SA 429 (CC); 2001 (1)
BCLR 1109 (CC) para 11; See also in this regard Twee Jonge Gezellen (Pty) Ltd and Another
v Land & Agricultural Development Bank of South Africa t/a the Land Bank and Another 2011
(3) SA 1 (CC) para 56.
36 Transvaal Industries Foods Ltd v B M M Process (Pty) Ltd 1973 (1) SA 627 (A)
37 Idem at 628 G-H
38 Incorporated Law Society v Taute 1931 TPD 12 at 17.

the society’s conduct is free of blame, the correct order is that there be no
order as to costs. Moreover, in view of the fact that the respondent is not an
ordinary litigant because in embarking on this litigation it was performing a
public duty, I consider it appropriate in the context of the peculiar facts of this
case, not only to deprive the appellant of his costs – to which he would
ordinarily be entitled – but also to direct that he pay the respondent’s costs on
appeal. However, in order to ameliorate the appellant’s position and strike a
fine balance between the parties’ competing interest, I would order that such
costs be on a party and party scale. Hence my concurrence, albeit for
different reasons, in the order proposed in the second judgment.

_________________________

X M Petse

Acting President of the

Supreme Court of Appeal

SIWENDU AJA:
[70] I have read the judgments by Mothle JA, Daffue AJA and Petse AP. I
concur in the judgment by Petse AP. However, I am duty bound to remark that
it is an open secret that the courts below are often inundated with cases
where litigants employ dilatory tactics with no genuine desire to bring their
disputes to finality to avoid a certain outcome.

[71] The first judgment details a litany of facts which point to a carefully
orchestrated strategy by the appellant to frustrate the final adjudication of the
dispute with the Legal Practice Council (the Council). There is a duty on a
legal practitioner to participate fully in any inquiry instituted by the Council as
an expression of the legal practitioner’s duty of loyalty to the Council and the

rule of law39. An inference is inescapable from the papers that over and above
the delays, the defamation proceedings instituted by the appellant against Ms
Mabaso which have not been finalised, are calculated to silence and
discourage her from pursuing her complaint against him.

[72] As stated in the second and third judgments this appeal raises the
spectre of a procedural irregularity by the court below and an apparent breach
of s 34 of the Constitution. Even though nothing turns on this at this juncture,
it merits emphasising that the subject and content of the right enshrined in s
34 is not one-sided but has a concomitant obligation and or duty on a
claimant. It is not sufficient to merely claim an infringement of the right to be
heard. A litigant in the position of the appellant, particularly an officer of the
court has a corresponding duty to demonstrate and legitimately exercise the
right conferred. An apparent failure to do so subverts and undermines the
administration of justice and the rule of law.

[73] The first judgment considered the sui generis nature of the proceedings
and states with reference to Malan and Another v Law Society, Northern
Provinces40 that a court of appeal is in as good a position to judge the facts as
was the court below. Upon a careful consideration, the view in Malan upon
which the judgment relies applies to factual findings and not to procedural
irregularities. It is for this reason amongst others, that I respectfully differ with
the first judgment.

________________________

NTY SIWENDU

ACTING JUDGE OF APPEAL

39 Hewetson v Law Society of the Free State 2020 (5) SA86 (SCA) para 67; and Mzayiya v
Road Accident Fund [2021] 1 All SA 517 (ECL) para 94.
40 2009 (1) SA 216 para 12.

APPEARANCES

For the appellant:

F A Ras SC (with M Augoustinos)
Instructed by:

Röntgen & Röntgen Attorneys,

Pretoria
Phatshoane Henney Attorneys,
Bloemfontein

For the respondent:

L Groome
Instructed by:

Rooth & Wessels Incorporated,

Pretoria

Pieter Skein Attorneys, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:  The Registrar, Supreme Court of Appeal
Date:  07 December 2022
Status: Immediate

The following summary is for the benefit of the media in the reporting of this case and does not form
part of the judgments of the Supreme Court of Appeal

Samuels v South African Legal Practice Council (formerly Law Society of the Northern Provinces)
(1112/2021) [2022] ZASCA 175 (07 December 2022)

Today the Supreme Court of Appeal (SCA) handed down judgment upholding an appeal against the
decision of the Gauteng Division of the High Court, Pretoria (the high court) that struck off the
appellant, Mr Paulos Lepekola Samuels, from the roll of attorneys.  The order of the high court was
set aside and the striking-off application was referred back to the high court for determination by a
differently constituted bench. Despite his success on appeal, the appellant was ordered to pay the
costs of the appeal.

The first judgment per Mothle JA held that it would have dismissed the appeal and confirm as correct
the high court’s order striking Mr Samuels’ name from the roll of attorneys with a punitive costs order.
The first judgment had found that Mr Samuels’ assertion that the high court infringed his right to be
heard, was factually and legally incorrect.  The judgment found that there was no application for
postponement before the high court to because Mr Samuels had not delivered a substantive
application as required in terms of the court’s rule 6. He had also inexplicably failed to utilize any of
the alternative options outlined in the Chief Justice’s and the Judge President’s Directives concerning
litigation procedures during hard lockdown. Relying on the decision of the SCA in Minister of Land
Affairs and Agriculture v D & F Wevell Trust 2008 (2) SA 184 (SCA), the minority judgment also found
that on appeal in the SCA, Mr Samuels did not state his factual allegations on affidavit; instead he

made factual allegations in the notice of appeal and heads of argument. The SCA thus had no evidence
on affidavit. Instead, the majority reached its conclusion from inferences drawn out of the content of
a collection of affidavits, inserted by Mr Samuels in the record, against established authority. The
minority judgment further found that the attempts by the high court to set up a virtual meeting on
the eve of the hearing could not materialise, because Mr Samuels’ attorney did not have access to an
email address necessary to provide the link to the virtual meeting.

On 15 October 2019 the striking-off application was set down for hearing on the opposed motion court
roll of 30 April 2020. In the interim, and following the outbreak of Covid-19 pandemic, on 16 March
2020 the President declared a state of national disaster for a period of 21 days which commenced on
26 March 2020 at 23h59. The initial period of 21 days was later extended to 30 April 2020. Every
person was confined to their place of residence, except, inter alia, those performing essential services.
All non-essential services were suspended.

The applicable Court Practice Directive, specifically issued to deal with the state of national disaster
requirements during alert level 5, stated that insofar as opposed applications were concerned ‘the
parties shall endeavour to reach an agreement dispensing with oral argument and shall to that end,
inform the judicial officer presiding in the matter of their decision’. The parties did not consider this
option and no such agreement was reached. In an email addressed to the Law Society’s attorneys a
few days before the hearing, the appellant sought a postponement, explaining the reasons for the
request. In response, he was advised to bring a substantive application for the postponement sought.
However, the appellant requested a postponement in an email addressed to the senior judge’s
secretary, in which he explained his predicament. The secretary replied that the learned judge insisted
on a substantive application. Such application was not filed. Two days before the hearing the
appellant’s representative was informed per email that the opposed application would by heard on
the Zoom virtual platform. It is common cause that neither party was invited to a virtual hearing and
that the presiding judges decided to adjudicate the application ‘on the papers’ without reference to
the parties. In his judgment (in which Windell AJA concurred) Daffue AJA found that the appellant’s
right to a fair hearing in terms of s 34 of the Constitution had been violated. In addition, there was no
compliance with section 32 of the Superior Courts Act 10 of 2013. The learned judge further held that
the high court erred in relying on section 19(a) of the Superior Courts Act in the absence of an
agreement between the parties. He reasoned that section 19(a) of the Superior Courts Act empowers
appellate courts to dispose of appeals without hearing oral argument only in circumstances where the
litigants themselves have agreed to this. He went on to hold that the high court’s finding that the

appellant chose not to appear and present his case before the court’ is clearly wrong because the
appellant could not present his case on any virtual platform as no link was established and no
invitation was extended to the parties.

After citing several judgments, in particular Morudi and Others v NC Housing Services and
Development Co Ltd and Others, a judgment of the Constitutional Court, the second judgment held
that the high court had committed a serious irregularity which resulted in a failure of justice.
Therefore, it would be wrong to adjudicate the appeal on its merits. Consequently, the appeal had to
be upheld and the application referred back to the high court for determination by a differently
constituted bench.

In his judgment, Petse AP held that the high court’s breach of the appellant’s fair hearing right as
enshrined in section 34 of the Constitution was dispositive of the appeal. Thus, he found that it was
unnecessary to canvass the other issues dealt with in the second judgment.

Siwendu AJA concurred in the judgment of Petse AP. However, she felt constrained to write separately
because, in her view, the appellant employed a carefully orchestrated strategy to delay the resolution
of the dispute with the Legal Practice Council, despite the duty placed on him as an officer of the court
to cooperate with its investigations. She emphasised that the subject and content of the right
enshrined in section 34 is not one-sided but has a concomitant obligation on the party invoking section
34.