8 March 2023
Illustration: Lisa Nelson
A law graduate who has a “predisposition to bouts of extreme anger and disrespect” is not a fit and proper person to be enrolled as an attorney, the Supreme Court of Appeal has ruled.
Goane Jack Siamisang Montshiwa, who studied his LLB (law degree) through UNISA, approached the court to appeal the refusal to admit him as a legal practitioner by a specially constituted two-judge full bench of the Mahikeng High Court.
The Mahikeng court judges found that he was not a fit and proper person and had not completed the necessary practical vocational training, among other reasons, for rejecting his application.
Montshiwa’s application for leave to appeal was unsuccessful and so he petitioned the Supreme Court of Appeal (SCA).
The SCA said the refusal to grant Montshiwa leave to appeal in the high court was “a nullity” because it had only been heard by one judge.
However, SCA Acting Deputy President Nambitha Dambuza (with judges Caroline Nicholls and Mahendra Chetty concurring) said she did not believe that Montshiwa should be sent back to the High Court to make a fresh application for leave to appeal. Instead, the court should exercise its inherent powers under the Constitution to consider the merits of the application to “avoid multiple fruitless court proceedings between the same parties”.
Judge Dambuza said she was not persuaded that another court would reach a different conclusion about Motshiwa’s fitness to become a legal practitioner.
“The courts in this country and elsewhere have identified certain qualities for a fit and proper person as envisaged in the Legal Practice Act. These include integrity, hard work, dignity, honesty, fairness and respect for legal order,” she said.
She said, while the expression “fit and proper” was not defined in the act, one of its objectives was to enhance and maintain appropriate standards of professional practice.
“As a legal practitioner, Mr Montshiwa would be expected to conduct himself with the highest degree of integrity … insulting vulgar and disparaging language by a legal practitioner cannot be tolerated.”
Judge Dambuza said it appeared from the record that Montshiwa’s conduct fell far short of what was expected.
“It is apparent that his appreciation of the processes, procedures and decorum of our courts is woefully deficient,” she said.
In response to opposition to his admission by attorney Jerry Sithole, Montshiwa had claimed it resulted from “bitterness and stupidity” and was an “idiotic move … motivated by stupidity”.
When another attorney, J Nkomo, filed an application to intervene in the admission proceedings in order to place on record certain conduct by Montshiwa in the Maintenance Court, Montshiwa had referred to the application as “idiotic” “barbaric” and what would be expected from a “passionate first year law student”.
Judge Dambuza said Montshiwa had written to the Minister of Justice and Correctional Services requesting that he establish a commission of inquiry to investigate “the relationship between Mr Nkomo and the North West High Court Bench”.
The Judge President of the North West division at the time was also not spared from Montshiwa’s tirade, who described her leadership as “a mockery”. He also laid a criminal complaint against her.
He also directed insults at judges who heard his application for admission and accused them of bias and collusion with the Judge President.
In the SCA, he continued with his vitriolic attacks “all of which demonstrates his lack of appreciation of the ethos and principles that govern the legal profession and the courts of this country”, said Judge Dambuza.
She cited in her judgment an article published on GroundUp, in which Pietermaritzburg High Court Judge Rishi Seegobin stated that “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]”.
Judge Dambuza said Montshiwa did not dispute the conduct and utterances attributed to him but only maintained that his conduct was not inappropriate.
“That cannot be so … Against this background no other court would find differently from the decision of the High Court,” she said, dismissing the application for leave to appeal, with costs.