Gaone Jack Siamisang Montshiwa (Ex Parte Application) (SCA) (unreported case no 672/2021, 3-3-2023) (Siwendu AJA (Van der Merwe JA concurring))In a case of Montshiwa, the Supreme Court of Appeal (SCA) dismissed an application brought by the applicant, Mr Montshiwa. This was after the dismissal of the application for a leave to appeal led to a petition at the SCA. Mr Montshiwa had sought to be admitted by the North West Division of the High Court, Mahikeng (the High Court) as a legal practitioner in terms of s 24 of the Legal Practice Act 28 of 2014 (LPA). The judgment notes a practice has developed in certain Divisions of the High Court that matters concerning the admission of legal practitioners are heard by two judges.
The court said that over a sustained period, Mr Montshiwa had made disparaging allegations against many of the judges of the High Court. As a result, the Judge President of that High Court specially constituted a Full Bench compromising of judges from outside the division to hear Mr Montshiwa’s application for admission. The court pointed out that Mr Montshiwa entered into a contract of articles for five years with Mr Lavelle Winston Vere of Vere Attorneys as his principal while studying for his LLB (the first contract). He resigned from the firm after a period of a year and 11 months. The court added that the departure was not on good terms. Mr Montshiwa entered a new contract of articles with Moetsi Maredi Attorneys Inc, and Mr KA Moetsi was his new principal (the second contract).
The court pointed out that Mr Montshiwa’s first contract was registered in terms of s 5(1) of the Attorneys, Notaries and Conveyancers Act 29 of 1984 with the then Law Society of Bophuthatswana under contract number 24/2014. His second contract was regulated by the Attorneys Act 53 of 1979 (AA) as amended, was registered with the Law Society of Northern Provinces on 17 May 2017 under contract number 1531/2017, approximately nine months after its conclusion.
The court said that Mr Montshiwa left the employ of Moetsi Maredi Attorneys Inc in March 2018. The court added that at the time of his application for admission, the LPA had come into effect, the upshot being that s 24 read with s 26 applied to the requirements for his admission. The provisions prescribe the requirements for admission and enrolment of legal practitioners in South Africa. They include South African citizenship, minimum academic qualifications, fitness for admission as a legal practitioner, and necessary practical vocational training as a candidate legal practitioner. The court pointed out that it is the last three requirements that became contentious in relation to Mr Montshiwa.
The court said that in his application of admission, Mr Montshiwa sought the following order in the High Court:
‘1. Joinder of the two contracts of articles registered with Law Society of Bophuthatswana under article number 24/14 and the Law Society of the Northern Provinces under registration number 1531/2017;
Condonation for three years and seven months service of period for articles.’
The court added that this order was sought on the basis that the two contracts of articles of clerkship covered the period prescribed to qualify for admission as a legal practitioner. The court said according to Mr Montshiwa the contract that he concluded with Mr Vere was registered with the Law Society on 2 September 2014 and was interrupted when he resigned from Mr Vere’s employment on 5 August 2016. The second contract was concluded with Mr Moetsi on 6 August 2016 and was registered with the Law Society ‘within two months’ of the date in conclusion thereof. According to Mr Montshiwa, Mr Vere refused to sign the cession of the first contract to Mr Moetsi, hence there was no evidence in relation to the relevant period as to whether he was a fit and proper person for admission as a legal practitioner. The High Court found that Mr Montshiwa’s had failed to explain certain discrepancies regarding the dates on which his contracts of articles of clerkship were concluded. The court was not satisfied that Mr Montshiwa had met the requirement for a structured work course during the period of serving articles or 12 months thereafter. The court found that Mr Montshiwa was not fit and proper to be admitted as a legal practitioner.
In the North West Division of the High Court, Mahikeng judgment by Olivier J (Mbhele J concurring), the High Court dismissed Mr Montshiwa’s application. Dissatisfied with the outcome, he approached the High Court for leave to appeal, which was similarly dismissed. On 29 March 2021, Mbhele J, solely considered the application for leave to appeal and refused it in a judgment delivered on 31 May 2021. The dismissal of the application for leave to appeal led to a petition to the SCA. The SCA said that on 26 August 2021, the application was referred for oral argument in terms of
s 17(2)(d) of the Superior Court Act 10 of 2013. Mr Montshiwa was directed to address the court on merits of the appeal.
In addition, at the request of the judges who considered the petition, the Registrar despatched a directive to the Legal Practice Council (the LPC) to make representations on merits of the application. Counsel representing the LPC referred to the fact that the court that dismissed the admission application was not constituted in the same manner as the court that heard and dismissed the application for leave to appeal. The counsel argued that the application was not properly before the SCA. The SCA pointed out that the controversy is whether there is ‘a valid decision’ refusing leave by the High Court within the contemplation of the Superior Courts Act, and whether the application is properly before the SCA. In other words, did the denial of the leave to appeal by Mbhele J, sitting as a single judge, render her decision and order a nullity, and whether, as a consequence, the SCA lacks the jurisdiction to consider the application? The SCA said that this cast a shadow of doubt on the validity of the directive issued on 26 August 2021 inviting Mr Montshiwa to address it in terms of s 17(2)(d). The SCA pointed out that s 17(1) of the Superior Courts Act informs that the challenge before it and states that ‘the judge or judges’ who heard the case at first instances may only grant leave to appeal if they are of the opinion that the appeal would have reasonable prospects of success, or that there is some compelling reason why the appeal should be heard.
The SCA added that s 17(2)(d) prescribes the constitution of the court to which may validly consider an application for leave to appeal. The SCA said that the section bestows competence on ‘a judge or judges.’ The SCA added that the conclusion that the application for leave to appeal heard in terms of s 17(2)(a) is to be heard by a full court by virtue of s 14(6). The SCA referred to s 14(5) that reads:
‘(5) If, at any stage during the hearing of any matter by full court, any judge of such court is absent or unable to perform his or her functions, or if a vacancy among the members of the court arises, that hearing must –
(a) if the remaining judge constitute a majority of the judges before whom it was commenced, proceed before such remaining judges; or
(b) if the remaining judges do not constitute such majority, or if only one judge remains, be commenced de novo, unless all the parties to the proceedings agree unconditionally in writing to accept the decision of the majority of the remaining judges or of the one remaining judge as the decision of the court.’
The SCA said the point of departure is whether despite the nullity of the decision by the High Court, the SCA has an inherent power under s 173 of the Constitution to deal with application for leave to appeal. The SCA added that the judgment by Dambuza ADP stresses that the Constitution gives it the power to regulate its process and said they should do so to prevent prejudice to Mr Montshiwa, as the matter would be ultimately referred to it. The SCA said that moves from the premise that an application for leave to appeal engages the ‘procedures and processes’ of the court. The SCA said that it functions in terms of the Superior Courts Act, the national legislation envisaged by s 171 of the Constitution, which prescribes –
In Pharmaceutical Society of South Africa and Others v Tshabalala-Msimang and Another NNO; New Clicks South Africa (Pty) Ltd v Minister of Health and Another 2005 (3) SA 238 (SCA), the SCA affirmed that although ‘like the Constitutional Court and High Courts, [it] has the inherent power to protect and regulate its own process, that “does not extend to the assumption of jurisdiction not conferred upon it by statute.”’ The SCA added that several decisions by it consistently affirm that absent leave being granted, it lacks jurisdiction to entertain an appeal. The SCA pointed out that the decision in Absa Bank Ltd v Snyman [2015] 3 All SA 1 (SCA) illustrates this point. The SCA said that in this instance, the prejudice Mr Montshiwa will suffer is partly self-created as it should have been evident to him at the hearing of the application for leave to appeal that the court was properly constituted.
The SCA said it could only have jurisdiction in terms of s 17(2)(b) of the Superior Courts Act. Adding that the jurisdictional requirement is that leave was refused by a properly constituted court, in fact or constructively. The SCA pointed out that as there is no dispute that there was no constructive refusal of leave and that the order purporting to refuse leave is nullity, the necessary jurisdictional requirement is absent. The SCA said that the improper composition of the court dealing with the leave to appeal renders the judgment a nullity, which cannot be sanctioned. The SCA added that the same applies to the order referring the application for leave to appeal for oral argument. The SCA struck the application from the roll with costs.
Dambuza ADP (Nicholls JA and Chetty AJA concurring), said that after reading the judgment prepared by Siwendu AJA. Although he agrees that the proceedings in the application for leave to appeal were irregular and the consequent order of the High Court is a nullity, he did not agree that Mr Montshiwa should be sent back to the High Court for a fresh application for leave to appeal.
Dambuza ADP said in his view this is the case in which the SCA should exercise its inherent powers under s 173 of the Constitution to regulate its process by considering the merits of the application for leave to appeal and, if it deems appropriate, the appeal, and decide thereon. Dambuza ADP said that the purpose for the threshold and procedure laid out in s 17 of the Superior Courts Act is to regulate the appeal process in the SCA for the SCA’s benefit, by ensuring that the SCA’s resources are not wasted on meritless appeals or cases that are not sufficiently important to occupy the attention of the SCA.
Dambuza ADP added that the underlying principle is that courts are bestowed with inherent powers to administer justice, including avoidance of multiple fruitless court proceedings between the same parties. Dambuza ADP said that under the first judgment Mr Montshiwa must return to the High Court for that court to comply with the relevant statutory prescriptions. He added that whatever judgment the reconstituted High Court will render, the matter will, in all probability, return to the SCA, either for a further application for leave to appeal or for an appeal. Dambuza ADP pointed out that all this in circumstances where Mr Montshiwa did comply with the requirements under the Superior Courts Act in relation to the application for leave to appeal process. Dambuza ADP said that it seems to him that grave injustice will result from such a judgment, and the waste of both his and the courts’ resources will be completely unjustified.
Dambuza ADP pointed out that the correct standard was that of reasonable prospects of success. He said that the SCA held that to strike the appeal from the roll, only for the appellants to retrace their steps to the High Court for leave to appeal and, if refused leave, back to the SCA for the repeat hearing of an issue that had been fully argued would be a gross technicality and waste of resources. Dambuza ADP asked whether Mr Montshiwa then made out a proper case for an order granting leave to appeal? He said that he is not persuaded that another court will reach a different decision from that of the High Court. He added the requirements specified in the LPA for admission as a legal practitioner are set out in the first judgment.
Dambuza ADP said that the courts in South Africa and elsewhere have identified certain qualities for a fit and proper person as envisaged in the LPA. He added the expression ‘fit and proper’ is not defined in the LPA. He added that there is no single test for determination of what constitutes a fit and proper person for purposes of admission into the legal profession. He pointed out that s 5 of the LPA, however, sets out one of the objectives of the Act as to ‘determine, enhance and maintain appropriate standards of professional practice and ethical conduct of all legal practitioners and all candidate legal practitioners’. He added that in terms of s 24(2)(c) of the LPA, only fit and proper persons may be admitted by courts as legal practitioners.
Dambuza ADP said that it appears from the record, apart from the discrepancies relating to his vocational training, Mr Montshiwa’s conduct, as demonstrated throughout his application for admission as a legal practitioner, and prior thereto, falls far short of degree of integrity, dignity, honesty, and respect expected of an officer of the court. He added that the LPC referred to numerous instances of conduct that has no place in the application for admission as a legal practitioner. Dambuza ADP said that it is apparent from these that Mr Montshiwa’s appreciation of the process, procedures, and decorum of South African courts is woefully deficient.
Dambuza ADP referred to some of the incident involving Mr Montshiwa. One of them, Dambuza ADP noted was when Jerry Sithole, an attorney practicing in Mmabatho, filed a notice to oppose his application for admission, Mr Montshiwa responded with an ‘“Opposing affidavit to the Notice to Oppose” in which he contended that Mr Sithole’s opposition was premature, resulted from “bitterness and stupidity”, and was an “idiotic move … motivated by stupidity.”’
Dambuza ADP added that the Judge President of the North West Division of the High Court at the time, Leeuw JP was not spared from Mr Montshiwa’s tirade. Dambuza ADP said that Mr Montshiwa berated the JP for constituting a full bench of judges from outside her division. He complained that the JP’s leadership was a mockery; and undertook to ensure that ‘Mashangu Leeuw JP, my enemy will never get away with any unlawful conduct that she may try.’ He added that the removal of Mr Montshiwa’s application for admission from the High Court roll on 20 March 2022 by Pietersen AJ led to a complaint by Mr Montshiwa against the judge to the Minister of Justice and Correctional Services and Judicial Services Commission.
Dambuza ADP said Mr Montshiwa also directed insults at the judges who heard his application for admission and accused them of bias and collusion with the Judge President against him. Dambuza ADP added that Mr Montshiwa’s conduct demonstrates his lack of appreciation of the ethos and principles that govern the legal profession and the courts of South Africa. Dambuza ADP said that Mr Montshiwa does not dispute the conduct and utterances attributed to him. He pointed out that Mr Montshiwa only maintains that his conduct is not inappropriate. Dambuza ADP said the conduct demonstrates a predisposition to bouts of extreme anger and disrespect. Dambuza ADP added that against this background no other court would find differently from the decision of the High Court.
He consequently dismissed the application for leave to appeal with costs.
Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.
This article was first published in De Rebus in 2023 (April) DR 28.
