THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case No: 672/2021

In the ex parte application:
GAONE JACK SIAMISANG MONTSHIWA
APPLICANT

Neutral Citation: Gaone Jack Siamisang Montshiwa (Ex Parte Application)
(Case no 672/2021) [2023] ZASCA 19 (3 March 2023)

Coram: DAMBUZA ADP, VAN DER MERWE and NICHOLLS JJA and
CHETTY and SIWENDU AJJA

Heard:
18 November 2022
Delivered: 3 March 2023

Summary: Application for leave to appeal ─ section 17(2)(d) of the Superior
Courts Act 10 of 2013 ─ leave to appeal against a decision of two judges sitting
as court of first instance ─ referred for oral argument ─ order refusing leave to
appeal by single judge ─ Court invoking inherent powers to consider the
application ─ application dismissed with costs.

________________________________________________________________

ORDER
________________________________________________________________

On appeal from: North West Division of the High Court, Mahikeng (Olivier J
and Mbhele J, sitting as court of first instance):
The application is dismissed with costs.
________________________________________________________________

JUDGMENT
________________________________________________________________

Siwendu AJA (Van der Merwe JA concurring):

[1] The applicant, Mr Montshiwa 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 No 28 of 2014  (LPA).1 A practice has
developed in certain Divisions of the high court that matters concerning the
admission of legal practitioners are heard by two judges. Over a sustained period,
Mr Montshiwa had made disparaging allegations against the majority of the
judges of the high court. As a result, the Judge President of the high court
specially constituted a full bench comprising of judges from outside the division
to hear his application for admission.2

[2] The facts are briefly that on 1 September 2014, Mr Montshiwa entered into
a contract of articles for five (5) years with Mr Lavelle Winston Vere of Vere

1 Section 24(1) provides:
‘A person may only practise as a legal practitioner if he or she is admitted and enrolled to practise as such in terms
of this Act.’
2 Section 14(1)(a) of the Superior Courts Act 10 of 2013 provides;
‘Save as provided for in this Act or any other law, a court of a Division must be constituted before a single judge
when sitting as a court of first instance for the hearing of any civil matter, but the Judge President or, in the absence
of both the Judge President and the Deputy Judge President, the senior available judge, may at any time direct
that any matter be heard by a court consisting of not more than three judges, as he or she may determine.’

Attorneys as his principal3 while studying towards his LLB (the first contract).
He resigned from the firm after a period of a year and 11 months. The departure
was not on good terms. He entered into a contract of articles with Moetsi Maredi
Attorneys Inc, and Mr KA Moetsi was his new principal (the second contract).

[3] The 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 No. 24/2014 (Bophuthatswana)4. The second
contract, 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 9 months after its conclusion.

[4] It bears mentioning that under the AA, unlike under the LPA, where
articles were not registered within two months of the commencement of service
as required by s 5(3) of the AA, a court had a discretion under s 13(2) to condone
an irregular service performed prior to registration, provided the service was
rendered under a valid contract of articles as defined in s 1 of the AA5. To ensure
continuity and a recognition of the unregistered period of service, an applicant
had to register the contract together with the cession of articles within two months
of commencement in terms of s 11(1) of the AA. Furthermore, a principal had an
obligation to inform the Law Society in writing of the cancellation, abandonment
or cession of the contract.

[5] Mr Montshiwa left the employ of Moetsi Maredi Attorneys Inc. in March
2018. At the time of his application for admission, the LPA had come into effect,

3 Mr Montshiwa matriculated from Mascom Training College in 2010 and thereafter enrolled for a Bachelor of
Laws (LLB) at the University of South Africa (Unisa). He also applied for a certificate of full exemption in terms
of section 7(1)(e) of Act 61 of 1995, which was issued with effect from 1 January 2011.
4 That Act has since been repealed by section 100 of the Compensation for Occupational Injuries and Diseases
Act 130 of 1993.
5 Ex Parte Gird (Prokureursorde, Transvaal, Toetredend) SA 1985 (3) SA 514 (T); Ex Parte Singer: Law Society,
Transvaal, Intervening 1984 (2) SA 757 (A )

the upshot being that s 246 read with s 26 applied to the requirements for his
admission. These provisions prescribe the requirements for admission and
enrolment of legal practitioners in the Republic. They include South African
citizenship, minimum academic qualifications, fitness for admission as a legal
practitioner, and the necessary practical vocational training as a candidate legal
practitioner. It is the last three requirements that became contentious in relation
to Mr Montshiwa.

[6] In his application for admission as a legal practitioner 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 the registration number
1531/2017;
Condonation for the three (3) years and seven (7) months service of period for articles.’
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.
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 of 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.

6 Section 24(2) provides:
‘The High Court must admit to practise and authorise to be enrolled as a legal practitioner, conveyancer or notary
or any person who, upon application, satisfies the court that he or she- (a) is duly qualified as set out in section
26; (b) is a – (i) South African citizen; or (ii) permanent resident in the Republic; (c) is a fit and proper person to
be so admitted; and (d) has served a copy of the application on the Council, containing the information as
determined in the rules within the time period determined in the rules.’

[7] The high court found that Mr Montshiwa had failed to explain certain
discrepancies regarding the dates on which his contracts of articles of clerkship
were concluded. It also 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 high court found that on the evidence Mr Montshiwa
was not a fit and proper person to be admitted as a legal practitioner.

[8] For these reasons on 3 September 2020, in a judgment by Olivier J
(Mbhele J concurring), the high court dismissed Mr Montshiwa’s application for
admission. Dissatisfied with the outcome, he approached the high court for leave
to appeal, which was similarly dismissed. The record shows that 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 this Court.

[9] On 26 August 2021, the application was referred for oral argument in terms
of s 17(2)(d)7 of the Superior Courts Act 10 of 2013 (the Superior Courts Act).
Mr Montshiwa was directed to address the Court on the 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 the merits of the application. At the hearing 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. He argued that the
application was not properly before this Court.

7 Section 17(2)(d) provides that:
‘The judges considering an application referred to in paragraph (b) may dispose of the application without the
hearing of oral argument, but may, if they are of the opinion that the circumstances so require, order that it be
argued before them at a time and place appointed, and may, whether or not they have so ordered, grant or refuse
the application or refer it to the court for consideration.’

[10] Thus, the controversy is about 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 this court. Put differently, it is whether
the denial of the leave to appeal by Mbhele J, sitting as a single judge, rendered
her decision and order a nullity, and whether, as a consequence, this Court lacks
the jurisdiction to consider the application. This, in turn, casts 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).

[11] The right to appeal to this Court is not automatic, and is regulated by ss 16
and 17 of the Superior Courts Act. Audience before this Court on appeal is
predicated ‘upon leave having been granted’ by the court first seized with the
matter or by this Court.8 Principally, s 16(1)(a)(ii) states that an appeal against
the judgment of any Division as a court of first instance lies with this Court if the
court consisted of more than one judge. The provisions in s 17 apply to evaluating
whether leave to appeal should be granted.

[12] Section 17(1) of the Superior Courts Act informs the challenge before us
and states that ‘the judge or judges’ who heard the case at first instance 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 other compelling reason
why the appeal should be heard. The constitution of the high court that presided
over the application for leave is determined by s 17(2)(a), which reads:
‘Leave to appeal may be granted by the judge or judges against whose decision an appeal is to
be made or, if not readily available, by any other judge or judges of the same court or Division.’
(Emphasis added.)

8 Section 16(1).

[13] Section 17(2)(d) prescribes the constitution of the court which may
validly consider an application for leave to appeal. The section bestows
competence on ‘a judge or judges.’ The conclusion that the application for
leave to appeal heard in terms of s 17(2)(a) is to be heard by the same number
of judges that heard the main application is fortified by analogy of s 14(5) of
the Superior Courts Act that applies to matters heard by a full court by virtue
of s 14(6). Section 14(5) reads:
‘(5) If, at any stage during the hearing of any matter by a 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 judges 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 a 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.’

[14] The provision provides support for the conclusion that where a matter is
heard by a full bench (two judges), leave to appeal must be determined a court
that is constituted in the same manner. Importantly, in S v Gqeba,9 this Court held
that if a court is not properly constituted, the proceedings before that court
constitute a nullity.10 Most recently, in Matamela v Mulaudzi11 the high court
granted leave to appeal to this Court when special leave should have been sought
by way of application to this Court. Answering an invitation to exercise its
inherent jurisdiction, the court, referred to another decision by this Court in

9 S v Gqeba & Others [1989] ZASCA 60; 1989 (3) SA 712 (A). After one of the assessors was relieved from duty
and the appeal, the court set aside a conviction and sentence on account of the fact that the judgement handed out
was not properly authorised by the section.
10 See also S v Malindi & Others [1989] ZASCA 114; 1990 (1) SA 962 (AD); [1990] 4 All SA 433 (AD).
11 Matamela v Mulaudzi [2022] ZASCA 71.

Tadvet Industrial (Pty) Ltd v Anthea Hanekom & Others,12 and held that the
decision of the high court was a nullity. It refused to entertain the appeal.

[15] There can be no doubt that an improperly brought appeal will have
repercussions for an applicant who wants to have his case finally determined. He
may need to re-approach the high court for proper leave to appeal and apply for
condonation. Given the unfortunate history alluded to above, it is not permissible
for this Court to deal with the matter in terms of s 17(2)(e)13 of the Superior Courts
Act. This provision does not stand alone and cannot be relied upon to leapfrog
the requirement for a valid judgment or order, a precondition for a leave to appeal.
Doing so would be antithetical not only to the Superior Courts Act but to the
jurisprudence of this Court.

[16] The point of departure is whether despite the nullity of the decision by the
high court, this Court has an inherent power under s 17314 of the Constitution to
deal with the application for leave to appeal. The judgment by my colleague
Dambuza ADP stresses that the Constitution gives this Court the power to
regulate its processes and we should do so to prevent prejudice to Mr Montshiwa,
as the matter would be ultimately referred back to it.  It moves from the premise
that an application for leave to appeal engages the ‘procedures and processes’ of
this Court.

12 Tadvet Industrial (Pty) Ltd v Anthea Hanekom & Others [2019] ZASCA 19 para 8.
13 Section 17(2)(e) provides:
‘Where an application has been referred to the court in terms of paragraph (d), the court may thereupon grant or
refuse it.’
14 Section 173 of the Constitution of the Republic of South Africa ,1996, (Constitution) provides:
‘The Constitutional Court, Supreme Court of Appeal and High Courts each has the inherent power to protect and
regulate their own process, and to develop the common law, taking into account the interests of justice.’

[17] The first hurdle is the subsidiarity principle in My Vote Counts NPC v
Speaker of the National Assembly15 which prohibits the direct reliance on the
Constitutional provision where national legislation has been enacted to give effect
to a right. This Court functions in terms of the Superior Courts Act, the national
legislation envisaged by s 17116 of the Constitution which prescribes (a) the
jurisdictional requirements; (b) the process and (c) the threshold for granting an
application for leave to appeal to this Court. Secondly, in New Clicks v Minister
of Health17 (New Clicks) this Court, 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.”’18 The circumstances in New Clicks which
involved ‘a constructive refusal’ to render a judgment by a lower court are not
comparable. The pathway through which the provisions of the Superior Courts
Act can be overlooked to confer this Court’s jurisdiction absent a valid judgment
by the high court is not defined.

[18] Significantly, several decisions by this Court consistently affirm that
absent leave being granted, it lacks the jurisdiction to entertain an appeal.19 The
decision in Absa Bank Ltd v Snyman20 (Absa Bank) illustrates this point. There,
the court confirmed another decision by this Court in Newlands Surgical Clinic
(Pty) Ltd v Peninsula Eye Clinic (Pty) Ltd21 (Newlands) where under the rubric

15 My Vote Counts NPC v Speaker of the National Assembly [2015] ZACC 31; 2016 (1) SA 132 (CC) para 54:
‘. . . where legislation has been enacted to give effect to a right, a litigant should rely on that legislation in order
to give effect to the right or alternatively challenge the legislation as being inconsistent with the Constitution.’
16 Section 171 of the Constitution provides:
‘All courts function in terms of national legislation, and their rules and procedures must be provided for in terms
of national legislation.’
17 Pharmaceutical Society of South Africa and Others v Minister of Health and Another; New Clicks South Africa
(Pty) Limited v Tshabalala-Msimang and Another [2004] ZASCA 122; 2005 3 SA 238 SCA.
18 Ibid para 19.
19 Section 16(1) of the Superior Courts Act; see also, Absa Bank Ltd v Snyman [2015] ZASCA 67; [2015] 3 All
SA 1 (SCA); 2015 (4) SA 329 (SCA) (Absa Bank) at para 10.
20 Ibid Absa Bank.
21 Newlands Surgical Clinic (Pty) Ltd v Pennisula Eye Clinic (Pty) Ltd [2015] ZASCA 25; 2015 (4) SA 34 (SCA)
(Newlands) paras 12-14. The Court in Newlands quoted Hefer JA in Moch v Nedtravel (Pty) Ltd t/a American
Express Travel Service 1996 (3) SA 1 (A).

of an ‘inherent reservoir of power to regulate its procedures in the interest of
proper administration of justice’ the court deliberated on whether it may entertain
a matter not the subject of the order granting leave to appeal. Confirming the
often-cited decision of this Court in Moch v Nedtravel (Pty) Ltd t/a American
Express Travel Service22 (Moch), it held that such a power does not extend to an
assumption of jurisdiction not conferred upon it by statute. The upshot of these
decisions, which have not been set aside, is that this Court’s inherent power to
regulate its affairs, condone an irregularity or address prejudice predominantly
applies to matters regulated by its rules and not to matters not expressly provided
by the governing statute. Even there, the power will be exercised sparingly. 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 not properly constituted.

[19] In sum: this Court could only have jurisdiction in terms of s 17(2)(b) of
the Superior Courts Act. The jurisdictional requirement is that leave was
refused by a properly constituted court, in fact or constructively. As there is no
dispute that there was no constructive refusal of leave and that the order
purporting to refuse leave is a nullity, the necessary jurisdictional requirement
is absent. The improper composition of the court dealing with the leave to
appeal renders the judgment a nullity, which cannot be sanctioned. The same
applies to the order referring the application for leave to appeal for oral
argument.

[20] In the result I would have struck the application from the roll with costs.

22 Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service [1996] ZASCA 2; 1996 (3) SA 1 (SCA).

_________________________

N T Y SIWENDU

ACTING JUDGE OF APPEAL

Dambuza ADP (Nicholls JA and Chetty AJA concurring)
[21] I have read the judgment prepared by my colleague Siwendu AJA.
Although I agree that the proceedings in the application for leave to appeal were
irregular and the consequent order of the high court is a nullity, I do not agree
that Mr Montshiwa should be sent back to the high court for a fresh application
for leave to appeal. In my view this is a case in which this court 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 make a decision thereon.

[22] Section 17 of the Superior Courts Act regulates the process of approaching
this court to appeal against a judgment of a Division of a high court. The section
builds upon the provisions of s 16(1)(a)(ii) of the same Act which confers appeal
jurisdiction on this court and regulates the process of exercising the right of
appeal as follows:
‘(a) an appeal against any decision of a Division as a court of first instance lies; upon leave
having been granted –
(i) . . .
(ii) . . .  if the court consisted of more than one judge, to the Supreme Court of Appeal.

[23] Section 17(1) prescribes the threshold that must be met for an appeal to be
heard by this court. Section 17(2)(b), in terms of which Mr Montshiwa
approached this court, provides opportunity to an applicant whose application for

leave to appeal under s 17(1) has been refused, to approach this court for the same
purpose.

[24] The purpose for the threshold and procedure laid out in s 17 is to regulate
the appeal process in this court for the court’s benefit, by ensuring that this court’s
resources are not wasted on meritless appeals or cases that are not sufficiently
important to occupy the attention of this court. Hence the following remarks by
Chaskalson CJ in Minister of Health and Another v New Clicks South Africa (Pty)
Ltd and Others (New Clicks South Africa):23
‘The granting of leave to appeal by an appeal court in such circumstances [where there had been
unreasonable delay in rendering a judgment on an application for leave to appeal] does not cause any
prejudice. If the application for leave had been dismissed by the lower court the litigant would have
been entitled as of right to apply to the appeal court for leave. The only prejudice caused is to the appeal
court which will have been burdened with an unnecessary application in cases where the lower court
would have given leave in any event’.24

[25] 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. Under the first judgment Mr Montshiwa must return to
the high court for that court to comply with the relevant statutory prescriptions.
Whatever judgment the reconstituted high court will render, the matter will, in all
probability, return to this court, either for a further application for leave to appeal
or for an appeal. 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. It seems to me that grave injustice will result from such
a judgment, and the waste of both his and the courts’ resources will be completely
unjustified.

23 Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others [2005] ZACC 14; 2006 (2) SA
311 (CC).
24 Ibid para 70.

[26] Recently this court has exercised its authority to override irregularities
occasioned in the application for leave to appeal process. Apart from New Clicks
South Africa, in National Credit Regulator v Lewis Stores (Pty) Ltd25 it did so in
circumstances where leave had incorrectly not been sought from the court of first
instance. Instead, leave had been sought and granted by this Court on the basis
that the applicant had to prove special circumstances justifying the grant of leave
to appeal. The correct standard was that of reasonable prospects of success.26
This court 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 this Court for a repeat hearing of an issue that had been fully argued would be
a gross technicality and waste of resources.

[27] Indeed, as illustrated in the following judgments of this court, the courts’
reservoir of power to regulate its process and procedure in the interests of proper
administration may not be used by the court to appropriate to itself jurisdiction
that is not conferred to it by statute or where a statute grants exclusive jurisdiction
to another court.27 In Moch this Court refused to hear an appeal against a
provisional sequestration order because no leave had been sought from the court
which granted that order. In addition, s 150 of the Insolvency Act 24 of 1936
precluded an appeal against a provisional sequestration order.  In this case
however, leave to appeal was sought by Mr Montshiwa in the court of first
instance, and the appeal jurisdiction of this Court is not excluded in respect of the
subject of the dispute between the parties.

[28] This application is also distinguishable from Matamela v Mulaudzi28 in a
number of respects. In that case the full court had removed the appeal from its

25 The National Credit Regulator v Lewis Stores (Pty) Ltd [2019] ZASCA 190; 2020 (2) SA 390 (SCA)
26 Ibid para 58.
27 Snyders v De Jager [2015] ZASCA 137; 2016 (5) SA 218 SCA.
28 See footnotes 11 and 23 of the first judgment.

court roll, leaving in place only the order of eviction granted by the magistrates
court. The appeal was only against the ruling removing the appeal from the full
court roll. The magistrates court order could not be appealed in this Court.
Further, in that case this court did not have before it an application for leave to
appeal. In addition, the appellant was at fault in having brought an application for
leave to appeal in the incorrect court.

[29] In Newlands29 the high court had granted leave to appeal on only one of
two issues in respect of which leave had been sought. On appeal the appellant
urged this court to consider its submissions on the second issue as well. This
Court refused to do so on the basis that its jurisdiction on appeal was limited to
the grounds on which leave to appeal has been granted. Importantly, no
application for leave to appeal had been brought in the court of first instance on
the second issue.

[30] In Social Justice Coalition and Others v Minister of Police and Others30
there had been a delay in the granting of a relief by the Equality Court, although
the court had already given a judgment and a declarator that a system employed
by the SAPS to allocate human resources in the Western Cape unfairly
discriminated against black and poor people. The applicants had also sought
orders that the Provincial Commissioner of Police had the power to determine the
distribution of police resources between stations within the province. The
Equality Court refused to grant the full extent of the order sought on the basis that
it did not have sufficient evidence on that aspect. It then postponed the hearing
on the remedy to a date that was to be arranged between the parties. In the
intervening appeal the Constitutional Court distinguished the court order granted

29 See footnote 21 above.
30 Social Justice Coalition and Others v Minister of Police and Others [2022] ZACC 27; 2022 (10) BCLR 1267
(CC) This judgment was recently handed down on 19 July 2022

by the Equality Court from New Clicks and held that the court’s power to regulate
its own processes did not extend to making decisions in respect of matters
pending in other courts. 31

[31] A distinction must also be drawn between this case and S v Malindi32
wherein this court set aside the decision of a criminal trial court because of the
dismissal of an assessor during the course of the trial. This Court found that the
change in the constitution of the court to have been grossly irregular. Unlike in
this case, the court in Malindi was not concerned with a process that was intended
for the courts’ benefit. The prescribed court constitution was intended for the
benefit of the accused. As discussed earlier, no prejudice will be suffered by Mr
Montshiwa in this case if this court considers this application for leave to appeal.
On the other hand, the prejudice resulting from re-starting the leave to appeal
process is manifest.

[32] The submission on behalf of the LPC that consideration and adjudication
of this application would amount to stultification of the clear vision of the s 17
and would lead to the opening of doors to litigants to approach this court directly
without a prior application to the court of first instance is not persuasive. The
peculiar circumstances of this case have been discussed, including the irregularity
attributable to the court, and the absurdity that would result if Mr Montshiwa
would be denied audience by this Court. Indeed, the courts have cautioned that
the power provided for under s 173 of the Constitution must be exercised
sparingly and carefully in instances where, otherwise grave injustice would
result.33 I am satisfied that this is a proper case where such power should be
exercised.

31 Ibid para 87.
32 S v Malindi and Others [1989] ZASCA 175; [1990] 4 All SA 433 (AD).
33 Enyati Colliery Ltd & Another v Alleson 1922 AD 24 at 32.

[33] Has Mr Montshiwa then made out a proper case for an order granting leave
to appeal? I am not persuaded that another court would reach a different decision
from that of the high court. The requirements specified in the LPA for admission
as a legal practitioner are set out in the first judgment. The courts in this country
and elsewhere have identified certain qualities for a fit and proper person as
envisaged in the LPA. These include integrity, hard work, dignity, honesty,
fairness and respect for legal order.34

[34] The expression ‘fit and proper’ is not defined in the LPA. There is also no
single test for determination of what constitutes a fit and proper person for
purposes of admission into the legal profession. Section 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’.
In
terms
of
s 24(2)(c) of the LPA only fit and proper persons may be admitted by courts as
legal practitioners.

[35] In Australian Broadcasting Tribunal v Bond35 the court described the
expression fit and proper as follows:
‘The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its
meaning from context, from the activities the person is or will be engaged in and the ends to
be served by those activities. The concept of ‘fit and proper’ cannot be entirely divorced from
the conduct of the person who is or will be engaging in those activities. However, depending
on the nature of those activities, the question may be whether improper conduct has occurred,
whether it is likely to occur, whether it can be assumed that it will not occur, or whether the
general community will have confidence that it will not occur. The list is not exhaustive but it
indicates that, in certain contexts, character (because it provides indication of likely future

34 General Council of the Bar of South Africa v Jiba and Another [2019] ZACC 23; 2019 (8) BCLR 919 (CC).
35 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321.

conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake
the activities in question.’36

[36] As a legal practitioner and an officer of the court Mr Montshiwa would be
expected to conduct himself with the highest degree of integrity, to ensure that
the dignity and decorum of the court is maintained and to have the highest respect
for legal order. Insulting, vulgar and disparaging language by a legal practitioner
cannot be tolerated. ‘The effective functioning of our courts and the proper
administration of justice are highly dependent on how legal practitioners go about
discharging [their duty to the court].’37

[37] As 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 the degree of integrity, dignity, honesty and respect expected of an officer of
the court. The LPC referred to numerous instances of conduct that has no place
in the application for admission as a legal practitioner. It is apparent from these
that Mr Montshiwa’s appreciation of the processes, procedures, and decorum of
our courts is woefully deficient. When Mr 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’.

[38] In addition, when Mr J Nkomo, another attorney from Mmabatho, filed an
application to intervene in the proceedings before the high court, in order to place

36 Ibid para 36.
37 R Seegobin ‘Restoring dignity to our courts: the duties of legal practitioners’ 14 September 2022 Groundup.
Available
at
https://www.groundup.org.za/article/restoring-dignity-to-our-courts-the-duties-legal-
practitioners/. Accessed on 16 February 2023.

on record certain conduct by Mr Montshiwa in the maintenance court, the latter
referred to Mr Nkomo’s application as ‘idiotic’, ‘barbaric’ and exhibiting the
level of substance expected from ‘a passionate first year law student’. Mr
Montshiwa also addressed a letter to the Minister of Justice and Correctional
Services requesting him to establish a Commission of Enquiry to investigate the
relationship ‘between Mr Nkomo and the North West High Court Bench.’

[39] The Judge President of the North West Division of the High Court at the
time, Madame Leeuw JP was not spared from Mr Montshiwa’s tirade. 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.’

[40] The papers filed by Mr Nkomo and Mr Sithole revealed Mr Montshiwa’s
personal attacks on the Judge President and a criminal complaint that he laid
against her. The removal of his application for admission from high the 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 the Judicial Services Commission. 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.

[41] His vitriolic attacks did not only dominate the proceedings in the high
court. In this Court, Mr Montshiwa demanded an explanation from the two judges
who directed that the LPC participate in this application for leave to appeal. He
castigated Ms Dineo Motaung for the contents of the affidavit filed on behalf of
the LPC. All this conduct demonstrates his lack of appreciation of the ethos and
principles that govern the legal profession and the courts of this country.

[42] Mr Montshiwa does not dispute the conduct and utterances attributed to
him. He only maintains that his conduct is not inappropriate. That cannot be so.
His conduct demonstrates a predisposition to bouts of extreme anger and
disrespect. Against this background no other court would find differently from
the decision of the high court.

[43] Consequently,
The application for leave to appeal is dismissed with costs.

___________________________
N DAMBUZA
ACTING DEPUTY PRESIDENT

Appearances

For Applicant:

In person
For LPC:

T Tshavhungwa
Instructed by:

Damons Magardie Richardson Attorneys, Pretoria

Phatshoane Henney 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:

03 March 2023
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
Gaone Jack Siamisang Montshiwa (Ex Parte Application) [2023] ZASCA 19 (3 March
2023)
Today, the Supreme Court of Appeal (SCA) dismissed an application for leave to appeal from the North
West Division of the High Court, Mahikeng (high court). The applicant was a candidate attorney who
sought to be admitted as an attorney. However, the high court found that the applicant had failed to
explain certain discrepancies regarding the dates on which his contract of articles of clerkship were
concluded. The court was also not satisfied that the applicant had met the requirements related to a
structured work course during the time in question. Ultimately, the court found that the applicant was
not a fit and proper person to be admitted as a legal practitioner and dismissed the applicant’s
application for admission.

The applicant approached the high court for leave to appeal, which was similarly dismissed after a
single judge considered the application. Lastly, the applicant petitioned this Court. This Court directed
the Legal Practice Counsel (LPC) to make representations on the merits of the application. However,
the LPC indicated that, considering the circumstances, the application was improperly brought before
this Court as the court that considered the appeal only consisted of one judge, thereby rendering the
dismissal of the appeal a nullity. The argument followed that this court, accordingly, had no jurisdiction
to entertain the appeal.

However, the SCA found that it was warranted to exercise its inherent powers under s 173 of the
Constitution of the Republic by considering the merits of the application for leave to appeal and, if
appropriate, determine the appeal. The Court was of the view that if the matter was remitted to the high
court, it would, in all probability, end up before this Court again. This would have amounted to an
absurdity and would serve to only waste the Court and the applicant’s resources.

Furthermore, upon consideration of the merits, the SCA determined that the applicant failed to make
out a proper case for an order granting leave to appeal. Despite the vitriolic attacks against numerous
members of the judiciary throughout the country, the applicant maintained that his conduct was not
inappropriate. It was found that the applicant was not a fit and proper candidate for the legal profession;

his conduct exhibited throughout the application procedure was found to have fallen short of the
integrity, dignity, honesty and respect expected from an officer of the court.

In the result, the SCA confirmed the order of the high court and dismissed the application for leave to
appeal.

In a separate dissent, the minority held that the proceedings in the application for leave to appeal was
irregular and the consequent order a nullity. As such, the matter ought to have been struck from the
role.

~~~~ends~~~~