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In the recent judgment handed down by the full bench of the High Court of South Africa, Free State Division, Bloemfontein on 13 February 2026 ("Full Bench") in Dlabantu and Associates Incorporated v Litosoane Germina Litsoane and the Road Accident Fund ("RAF"), the Full Bench had to decide whether a suspended attorney who is a director of an incorporated company can represent the company as a legal practitioner in proceedings before court and whether an order varying the payment details for a client's RAF compensation was sound.
Mr Ongamo Dlabantu ("Mr Dlabantu") was previously employed by Motaung Attorneys as a legal practitioner, where he handled Ms Litsoane's RAF claim, which was settled on 10 March 2022. Ms Litsoane accepted and signed an offer of settlement which stated that payment of the compensation by the RAF would be made into the trust banking account of Motaung Attorneys ("Settlement Agreement"). Mr Dlabantu left the employ of Motaung Attorneys on 5 October 2022 and started his own firm ("Dlabantu and Associates Incorporated") as a sole director. Following a consultation with Mr Dlabantu during late October 2025, Ms Litsoane terminated the mandate of Motaung Attorneys and signed a special power of attorney empowering Mr Dlabantu to carry out the mandate concerning her RAF claim. This special power of attorney mandated Mr Dlabantu to, amongst others, do all that is necessary for the speedy and effective finalization of Ms Litsoane's claim against the RAF; negotiate any settlement on behalf of Ms Litsoane; sign all necessary forms for the prosecution and settlement of the claim on behalf of Dlabantu and Associates Incorporated; and to receive the capital and costs of the compensation for Ms Litsoane from the RAF.
A dispute arose between Mr Dlabantu and Ms Litsoane regarding the reason for the termination of Motaung Attorneys' mandate. Ms Litsoane alleges that she was pressured into signing these documents and was told that it was on Mr Motaung's (of Motaung Attorneys) instructions whereas Mr Dlabantu's version is that he advised her to terminate Motaung Attorneys' mandate so that the compensation could be paid by the RAF to Dlabantu and Associates Incorporated, which would expedite the process given the delay that she was experiencing.
Dlabantu and Associates Incorporated launched an application to make the Settlement Agreement an order of court and on 10 November 2022 the Settlement Agreement was made an order of court (the Order"). Importantly, the Order contained a provision ordering that the compensation payable by the RAF would be paid into the trust banking account of Dlabantu and Associates Incorporated, not the trust banking account of Motaung Attorneys as set out in the Settlement Agreement. Upon becoming aware of this, Mr Motaung (of Motaung Attorneys) applied to the court a quo for a variation of the Order effectively removing Dlabantu and Associates Incorporated as the payee and restoring the status quo ante.
The court a quo found that the Order reflected the incorrect banking details as set out in the Settlement Agreement and varied the Order to be in line with the Settlement Agreement ("Varied Order"). It held that the settlement of Ms Litsoane's claim against the RAF occurred before Mr Dlabantu left the employ of Motaung Attorneys; this was before payment could be effected into Motaung Attorneys trust banking account; and the Order differed from the Settlement Agreement which had not been amended. This Varied Order is the subject of Dlabantu and Associates Incorporated's appeal to the Full Benchwhich appeal the Full Bench has dismissed with costs. The effect is that Ms Litsoane's RAF compensation had to be paid into Motaung Attorneys' trust account.
Right of audience
Despite being suspended from the roll of practising legal practitioners on or about 8 November 2024, Mr Dlabantu sought to represent Dlabantu and Associates Incorporated in the appeal to the Full Bench, as a director of Dlabantu and Associates Incorporated.
The Full Bench's analysis accordingly focused on Mr Dlabantu's suspension from practice and the reason for such suspension i.e.: his non-compliance with section 84 of the Legal Practice Act 28 of 2014, practising without a valid Fidelity Fund certificate, which is mandatory. The Full Bench also cited the common law general principle that a director or shareholder does not have a right to legally represent a juristic person. Such representation is only permissible in rare or exceptional circumstances. An individual seeking leave to do so would need to make a properly motivated formal application showing good cause why the rule should be relaxed, and the court would determine such an application on a case-by-case basis.
In this case, there was no application before the Full Bench and Mr Dlabantu failed to establish any rare or exceptional circumstance for why he should be allowed to represent Dlabantu and Associates Incorporated. The Full Bench accordingly held that Mr Dlabantu did not enjoy audience before it.
Patent error
The Full Bench held that it cannot be disputed that the banking details appearing in the Settlement Agreement differed from those in the Order which constituted a patent error as contemplated in Rule 42(1)(b) of the Uniform Rules of Court. Rule 42(1)(b) of the Uniform Rules of Court empowers a court upon the application of any affected person, to rescind or vary an order or judgment in which there is an ambiguity or a patent error or omission to the extent of such ambiguity, error or omission.
In this case, the Settlement Agreement clearly indicated that the compensation had to be deposited into the trust account of Motaung Attorneys and had not been amended to allow for the payment into the trust account of Dlabantu and Associates Incorporated. The Full Bench accordingly confirmed the Varied Order as unassailable.
Conclusion
There are three takeaways from the judgment of the Full Bench.
It is of vital importance for legal practitioners, who practise as directors of a practice which is a juristic entity, to comply with the provisions of section 84 of the Legal Practice Act 28 of 2014. The dangers of practising without a valid Fidelity Fund certificate are not only suspension from practice but can amount to a complete shutdown of a practice in the case of a firm with a sole director who is suspended. Recently a class action certification application in the Johannesburg High Court had to be postponed because the attorney representing the applicants (Douglas Shaw) did not have a valid Fidelity Fund certificate. Mr Shaw was also ordered to show cause why a personal costs order against him should not be made.
Exceptional circumstances must exist before a court can exercise its discretion to relax the common law rule that a director or shareholder does not have a right to legally represent a juristic person. These exceptional circumstances will need to be set out in a properly motivated formal application showing good cause why the rule should be relaxed.
If there is a "patent error" in a court order, the court has the power to and will proceed to vary the court order removing the "patent error" in accordance with Rule 42(1)(b) of the Uniform Rules of Court.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
