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.REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, JOHANNESBURG)

 

CASE NUMBER: 49039/2021

REPORTABLE: no

OF INTEREST TO OTHER JUDGES: no

2022/09/2022

 

In the matters between:

 

MAXWELL MAVUDZI                                                                           First Applicant

 

JEREMIAH NYASHA MUSIWACHO DUBE                                         Second Applicant

 

and

 

SKHUMBUZO MAJOLA                                                                      Respondent

 

This judgment has was delivered orally on 30 September 2022 in court and was thereafter revised and uploaded to the caselines, and further and communicated to the parties by email.

 

APPLICATION FOR LEAVE TO APPEAL JUDGMENT

 

Sutherland DJP

 

Introduction

[1]        We have read the notice for application for leave to appeal which was extensive in its detail and we have heard argument from Mr Mavudzi and from council on behalf of the Legal Practice Council and on behalf of the National Prosecuting Authority for Mr Majola, whose conduct is the subject matter of the case.

 

[2]        The application for leave to appeal, in our view, must be dismissed. The premise of the application for leave to appeal is that a Court of Appeal is likely to overturn the decision of this court which was to refuse an application to strike off Advocate Majola name from the Roll of legal practitioners in circumstances where there had been no investigation of the allegations of misconduct.

 

[3]        The argument that was presented by Mr Mavudzi today, essentially, was premised on the proposition succeeding that the Court of Appeal would be satisfied to make a finding of fact that there was misconduct on the part of Advocate Majola and that, in turn an application to strike him off would be appropriate. That is the threshold that needs to be exceeded in order for the application to succeed.

 

[4]        It is plain, in our view, that there is no merit in that contention and the prospects of another court finding otherwise and overturning the order are non- existent.

 

[5]        There was a related argument in relation to costs and whether or not it was proper for the State Attorney to afford its assistance at public expense on behalf of Advocate Majola. The argument ran that he should have borne his own legal expenses. Ergo, the order made in the main application that Mr Mavudzi pay the costs of the application is inappropriate. In our view the premise of that argument is ill-founded as it is plain that Advocate Majola’s misconduct was committed in the course of his official capacity.

 

[6]        It seems in our view given the considerations I referred to that the costs of this application should also be borne by Mr Mavudzi.

 

[7]        Accordingly, I make the following order:

 

(1)       The application for leave to appeal is dismissed.

 

(2)       The first and second applicants shall bear the costs of this application

 

Sutherland DJP

 

I agree:

 

Molahlehi J

 

Heard: 30 September 2022

 

Judgment: 30 September 2022

 

The Applicants were represented by the first Applicant, in person.

 

The First and Third respondents (Adv S Majola and the National Prosecuting Authority):

Adv C Georgiades SC

 

Instructed by the State Attorney.

 

The Second respondent (The Legal Practice Council):

Adv T C Tshavhungwa,

 

Instructed by Damons Margardie Richardson Attorneys

 

 

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