The Constitutional Court has upheld the decision to strike Limpopo lawyer Kevin Maluleke from the roll of practicing advocates.
The ruling, issued by the Constitutional Court, stated: “The application for leave to appeal does not engage its jurisdiction. Consequently, leave to appeal must be dismissed with costs and the court need not decide the application for condonation.”
Blow to legal career
Maluleke’s bid to overturn his removal faced rejection by the judiciary, marking a definitive blow to his legal career.
The legal battle stemmed from a prior ruling by the High Court in Limpopo, which authorised Maluleke’s removal from the advocates’ roll last year.
The court found that Maluleke had concealed information regarding previous charges and convictions, including theft and intimidation, which were pertinent to his eligibility as an advocate.
Maluleke did not dispute allegations
The high court’s decision, delivered on January 17, 2023, was made in Maluleke’s absence as he had failed to file an answering affidavit to the allegations the Polokwane Society of Advocates brought forth.
Despite being aware of the proceedings, Maluleke neither disputed the charges nor challenged the application against him.
“On or about 17 October 2017, the Limpopo Society of Advocates issued an application in the Limpopo Division of the High Court, Polokwane under case number: 7113/2017, to have Mr Maluleke’s name struck off the roll of practicing advocates. Mr Maluleke filed a notice of intention to oppose, and thus the matter became an opposed application. A myriad of interlocutory applications between the parties then followed,” the high court in Limpopo said.
“However, Mr Maluleke did not file an answering affidavit to the founding affidavit of the Polokwane Society of Advocates. To date, no answering affidavit has been filed. And thus, Mr Maluleke is in default.”
Rescission application
In his efforts to contest the ruling, Maluleke pursued an application for rescission, citing errors in the granting of the order. However, the court dismissed his submissions, emphasising his failure to file an answering affidavit and concluding that there was no basis to suggest an erroneous granting of the order.
Maluleke’s subsequent appeal to the Constitutional Court also met with disappointment in February, as the court declined to entertain his application for leave to appeal, citing jurisdictional constraints.
Throughout the legal proceedings, Maluleke argued that his constitutional rights to a fair hearing were violated, but the courts found no merit in his claims.
“His further submission that his constitutional rights of fair hearing were infringed, as the court did not grant him an opportunity to be heard, is without merit. In terms of the rules of court, once a party has filed an intention to oppose, he is expected within 15 days thereof to file an answering affidavit.
“In the present matter, despite the launching of a myriad of applications, Mr Maluleke consciously elected not to file an answering affidavit. Even though he appeared in court on l7January 2023 and argued the application himself, he still did not file an answering affidavit. In these circumstances, it is not far-fetched to surmise that he failed to file an answering affidavit, as the Polokwane Society of Advocates case was unanswerable,” said the high court.
“The conclusion reached is that the application is not erroneously sought or granted. In the result, the application was dismissed with costs.”
