Gaone Jack Siamisang Montshiwa (Ex Parte Application)

Mr Montshiwa applied for admission as a legal practitioner in the North West Division of the High Court, Mahikeng under section 24 of the Legal Practice Act 28 of 2014. He had entered into two contracts of articles: first with Mr Vere from 1 September 2014 (for 5 years), which he left after 1 year and 11 months on bad terms, and second with Mr Moetsi from 6 August 2016, which was registered on 17 May 2017. Due to disparaging allegations Mr Montshiwa made against the majority of judges in the North West Division, the Judge President specially constituted a full bench of two judges from outside the division to hear his admission application. On 3 September 2020, the full bench (Olivier J and Mbhele J) dismissed the application. Mr Montshiwa sought leave to appeal, which was heard and refused on 31 May 2021 by Mbhele J sitting alone. He then petitioned the Supreme Court of Appeal, which referred the matter for oral argument under section 17(2)(d) of the Superior Courts Act on 26 August 2021.

• Whether the application for leave to appeal heard by a single judge (Mbhele J) was validly constituted when the original application was heard by two judges
• Whether the order refusing leave to appeal by a single judge was a nullity
• Whether the Supreme Court of Appeal had jurisdiction to consider the application in light of the nullity
• Whether the Court should exercise its inherent powers under section 173 of the Constitution to regulate its process and consider the application despite the irregularity
• Whether Mr Montshiwa met the requirements for admission as a legal practitioner, including fitness and propriety

The application for leave to appeal was dismissed with costs. The majority exercised inherent powers to consider the application despite the irregularity but found no merit in granting leave to appeal.

The binding legal principles are: (1) Where a matter is heard by a full bench of two judges as a court of first instance, the application for leave to appeal under section 17(2)(a) of the Superior Courts Act must be heard by the same number of judges, not by a single judge, and failure to constitute the court properly renders the decision a nullity. (2) The Supreme Court of Appeal has inherent power under section 173 of the Constitution to regulate its processes and may exercise this power to consider an application for leave to appeal despite irregularities in the lower court proceedings, where doing so serves the interests of justice, prevents prejudice to the applicant, and avoids waste of judicial resources. This power does not extend to assuming jurisdiction not conferred by statute, but applies to regulate the procedures and processes intended for the court's benefit. (3) The requirement that an applicant be a 'fit and proper person' under section 24(2)(c) of the Legal Practice Act requires assessment of character, conduct, integrity, dignity, honesty, fairness and respect for legal order. Insulting, vulgar and disparaging language and conduct toward officers of the court and judges demonstrates unfitness for admission as a legal practitioner.

The majority judgment noted that the expression 'fit and proper person' carries no precise meaning and takes its meaning from context, the activities to be engaged in, and the ends to be served. The concept cannot be divorced from conduct and character, which provide indication of likely future conduct. The Court observed that legal practitioners are expected to conduct themselves with the highest degree of integrity to ensure that the dignity and decorum of the court is maintained. The effective functioning of courts and proper administration of justice are highly dependent on how legal practitioners discharge their duty to the court. The Court also noted that the subsidiarity principle in My Vote Counts NPC v Speaker of the National Assembly prohibits direct reliance on constitutional provisions where national legislation has been enacted to give effect to a right, but distinguished this case where the application engaged the procedures and processes of the Court itself. The minority would have held that the Court's inherent power to regulate its affairs and condone irregularities predominantly applies to matters regulated by its rules and not to matters expressly provided by statute, and should be exercised sparingly.

This case is significant for several reasons: (1) It clarifies that when an application is heard by a full bench (two judges), the application for leave to appeal must be heard by the same number of judges, not by a single judge. (2) It demonstrates the Supreme Court of Appeal's willingness to exercise its inherent powers under section 173 of the Constitution to regulate its processes and prevent prejudice and waste of judicial resources, even where there has been an irregularity in the lower court proceedings. (3) It reaffirms the high standards of conduct, integrity, dignity and respect expected of persons seeking admission as legal practitioners and officers of the court. (4) It provides guidance on the 'fit and proper person' requirement under section 24(2)(c) of the Legal Practice Act, emphasizing that conduct and character are critical indicators of fitness for admission. (5) It illustrates the limits of technical procedural requirements when they would lead to absurdity and waste of resources, balancing formalism with substantive justice.