Maintenance proceedings will have to be heard afresh after an attorney who was not in right standing with the Legal Practice Council (LPC) did not have the right to appear on behalf of a party.
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A lawyer who had no right of appearance has now subjected two parties to fresh maintenance proceedings because he was not being compliant.
Judge Johanna Titus in the North West High Court in Mafikeng did a special review of the maintenance proceedings and ordered for the ruling to be set aside for it to be heard afresh before a new magistrate.
This was due to Willem Matheolwane not being in right standing with the Legal Practice Council (LPC), having not held a document that gave him the right to appear on behalf of a party in the maintenance proceedings.
The matter landed before Judge Titus as a special review as “there was a gross irregularity committed during the proceedings” after a legal practitioner alerted the lower court magistrate of a discrepancy relating to Matheolwane.
“The (other attorney) reported that Matheolwane is not in good standing with the LPC following an expired right of appearance as an attorney,” the court record stated.
Correspondence from the LPC confirmed the same to the court, the court noted.
Judge Titus said that the phrase “gross irregularity in the proceedings” envisages an irregularity in the conduct of the proceedings, not the result thereof.
“In terms of section 24(1) of the Legal Practice Act 28 of 2014, ‘(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’.
“At section 33(1) of the same Act, there is the prohibition that, ‘(s)ubject to any other law no person other than a legal practitioner who has been admitted and enrolled as such in terms of this Act may, in the expectation of any fee, commission, gain or reward: (a) appear in any court of law or before any board, tribunal or similar institution in which only legal practitioners are entitled to appear… The LPC confirmed… that Matheolwane’s right of appearance expired 16 February 2024 and that no further right of appearance was issued to him thereafter,” Judge Titus said.
The judge noted that Matheolwane appeared in contravention of the Legal Practice Act. “Stated differently, he had by law no right of appearance to represent the respondent as he did. In doing so, it is axiomatic that he unfairly infringed the respondent’s right to a fair hearing,” said Judge Titus.
Handing down the order, Judge Titus said proceedings in the formal maintenance inquiry stood to be reviewed and set aside in toto (completely).
Attempts to get comment from Matheolwane were unsuccessful by deadline.
chevon.booysen@inl.co.za