South African Legal Practice Council v Mokhele

The South African Legal Practice Council (LPC) brought an urgent application to the Free State High Court against Lebohang Michael Mokhele, a legal practitioner, seeking his suspension from the roll of legal practitioners pending the finalisation of a disciplinary inquiry. The application was brought in terms of section 43 of the Legal Practice Act 28 of 2014. The LPC's investigation team had discovered prima facie evidence of trust fund shortages following complaints from the public. The investigation established serious misconduct and evidence of trust shortages in at least two matters (complaints from Ms Radebe and Mr Yawa). Mr Mokhele had been subjected to a disciplinary committee in the case of Mr Mokoena, and in Mr Thulo's case, he entered into a settlement agreement to repay R42,000 on condition that the complaint be withdrawn. The high court found that there was indeed a trust shortfall but dismissed the application on the basis that the LPC could only approach the court after finalisation of the disciplinary process. By the time of the appeal, the high court had granted an order suspending Mr Mokhele pending an application to strike his name from the roll, which application had been heard and judgment was awaited.

• Whether the court should hear a matter that has become moot
• Whether section 43 of the Legal Practice Act permits suspension of a legal practitioner on an interim basis pending disciplinary investigations and hearings
• The proper interpretation and application of section 43 of the Legal Practice Act 28 of 2014
• Whether declaratory relief not sought in the original notice of motion can be determined on appeal
• Whether the interests of justice require the court to determine a moot issue to resolve conflicting court decisions and provide legal clarity

The matter was struck from the roll with no order as to costs.

A court will not determine a moot issue on appeal, even if of general importance and capable of resolving conflicting judgments, where: (1) the declaratory relief sought on appeal was not set out in the original notice of motion; (2) the issues engage the interests of parties not before the court who are entitled to be cited; and (3) the appellate court would effectively become a court of first instance in respect of the new relief sought. The proper procedure in such circumstances is for an application to be brought in the high court with all interested parties cited. The court will apply the Constitutional Court's multi-factor test when determining whether to hear a moot matter, considering practical effect, importance, complexity, fullness of arguments, and resolution of inter-court disputes.

The court made strong obiter observations deprecating the conduct of Mr Mokhele and his legal representative, including: failure to file heads of argument timeously; non-appearance and late arrival at court without explanation; making incomprehensible submissions; and seeking costs against the LPC for alleged abuse of process. The court noted that the high court had referred to death threats made by Mr Mokhele to complainants and that he had been less than candid with the court. The court stated: "This conduct ill befits an officer of court and must be strongly deprecated." The court also noted, without finally determining, that the wording of section 43 of the Legal Practice Act may not necessarily support the high court's conclusion that the LPC could only approach the court for a suspension order after finalisation of disciplinary proceedings, leaving this question open for proper determination in future proceedings.

This case is significant in South African jurisprudence as it addresses the principles governing when courts will hear moot matters, particularly in the context of professional regulatory proceedings. It emphasizes the importance of proper procedural compliance when seeking declaratory relief, requiring that all interested parties be cited when matters of broad public or sectoral importance are at stake. The case confirms that even where an issue is of general importance and may resolve conflicting court decisions, appellate courts will not grant declaratory relief that was not sought in the original proceedings and where affected parties have not been given an opportunity to be heard. It reinforces that a court of appeal should not become a court of first instance for new relief. The judgment also underscores the high standards of professional conduct expected of legal practitioners, particularly in their dealings with courts and regulatory bodies. While the case does not definitively resolve the interpretation of section 43 of the Legal Practice Act, it provides guidance on the proper procedural path for obtaining such clarification.