Mahafha v Malaka-Chabumba (2024/075575) [2025] ZAGPJHC 1336 (12 September 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: South Gauteng High Court, Johannesburg South Africa: South Gauteng High Court, Johannesburg You are here: SAFLII >> Databases >> South Africa: South Gauteng High Court, Johannesburg >> 2025 >> [2025] ZAGPJHC 1336 | Noteup | LawCite sino index ## Mahafha v Malaka-Chabumba (2024/075575) [2025] ZAGPJHC 1336 (12 September 2025) Mahafha v Malaka-Chabumba (2024/075575) [2025] ZAGPJHC 1336 (12 September 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2025_1336.html sino date 12 September 2025 REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG LOCAL DIVISION, JOHANNESBURG CASE NO: 2024-075575 (1)  REPORTABLE: NO (2)  OF INTEREST TO OTHER JUDGES: NO (3)  REVISED: NO 12/09/2025 In the matter between: ADV TSHISAMPHIRI MAHAFHA Applicant And REFILWE MALAKA-CHABUMBA Respondent Neutral Citation : Delivered: By transmission to the parties via email and uploading onto Case Lines the Judgment is deemed to be delivered. JUDGMENT SENYATSI J Introduction [1] This is an application for the discharge of a provisional interdict granted by Malindi J on 16 July 2024. The interdict, operating as an interim order, restrained the Respondent, Ms R. Malaka-Chabumba, from publishing any statements on social media or other public platforms concerning the professional conduct of the Applicant, Advocate T. Mahafha. The Applicant seeks not only the discharge of this order but also an order for costs against the Respondent. Background [2] The factual matrix from which this dispute arises is largely common cause or not seriously disputed. The Applicant is a legal practitioner enrolled with the Legal Practice Council ("LPC"). It is conceded that he does not hold a Fidelity Fund Certificate, nor does he maintain a trust account. Consequently, his right to practice is constitutionally limited to accepting instructions from, and working through, attorneys or other advocates who do hold such accounts. [3] On 3 August 2023, the Respondent and her mother consulted with the Applicant at his chambers regarding a potential personal injury claim against Spurs restaurant. At this meeting, a deposit of R1,500.00 was paid, and the Applicant caused the Respondent’s mother to sign a power of attorney. The terms of this document clearly indicate that the Applicant himself was being instructed to act. The Applicant frankly informed his prospective clients that he had no experience in personal injury law. [4] Subsequently, the Applicant had the mother sign a consent form to obtain medical records. In April 2024, the Applicant communicated a settlement offer of R175,000.00 from Spurs, which he advised was inadequate, promising to negotiate it up to R200,000.00. It was later discovered by the Respondent that Spurs had, in fact, already paid the sum of R250,000.00 in settlement of the claim. [5] In May 2024, the Applicant procured another special power of attorney from the mother this time with a contingent liability to her mother agreeing to pay Mahafha Attorneys 25% of the amount recovered as legal fees. Notably, this document referred to "Mahafha Attorneys" as the instructed party, an entity which, on the Applicant's own version, did not consult with the parties for the instructions although they may be holding a Trust Account Fidelity Certificate. [6] Upon inquiry about the payment, the Applicant indicated it would be processed within 14 days. When no payment was forthcoming, the First Respondent lodged a complaint with the LPC. Frustrated by the perceived lack of urgency from the LPC, she took to social media to publicly voice her grievances and her mother's frustrations regarding the Applicant's handling of the matter. This prompted the Applicant to seek and obtain the provisional interdict now before me for discharge. The Legal Principles [7] A provisional interdict is an extraordinary remedy designed to preserve the status quo pending the final determination of the rights of the parties. For it to be confirmed, the applicant for the interdict must establish: (a) A clear right. (b) An injury actually committed or reasonably apprehended. (c) The absence of any other satisfactory remedy . The same principles apply to an application for its discharge. The respondent in the interdict application (the First Respondent here) can secure its discharge by demonstrating that the applicant (Advocate Mahafha) failed to establish one or more of these requirements in the founding papers. [8]  In Food and Allied Workers Union and Others v Scandia Delicatessen CC and Another [1] the Court reaffirmed the requirements for final interdict and held that one of the essential requirements for grant of final mandatory interdict is that the person applying therefor must show that there is no other satisfactory remedy available. [9]  Once the applicant meets all the requirements for a final interdict, the court hearing the application must grant the relief. [2] Analysis Clear Right [10] The Applicant's case for a clear right to protect his reputation is predicated on the statements being defamatory and unlawful. However, a defence to defamation is that the statement is true and in the public interest, or that it constitutes fair comment as the respondent was frustrated about the plight of her mother. [11]  The First Respondent's social media posts alleged a failure to account for funds and unprofessional conduct. The facts, as presented by the Applicant himself, provide a compelling basis for these allegations. The admission that R250,000.00 was received from Spurs while the client was told a lower figure existed and was still being negotiated is, on its face, a serious dereliction of duty. The use of a power of attorney directed to him personally, and later to an existing law firm of his brother, directly contravenes the provisions of the Legal Practice Act 28 of 2014 and the rules of the LPC governing practitioners without trust accounts. This conduct is not merely incompetent; it suggests a potentially unethical attempt to practice in a manner for which he is not authorised. [12]  In the circumstances, the First Respondent has shown a strong prima facie case that her statements were substantially true and related to a matter of legitimate public concern – namely, the conduct of a legal professional. An interdict cannot be used to gag criticism, however forcefully expressed, where there is a credible foundation for it. The Applicant has therefore failed to demonstrate the clear right necessary to sustain the interdict. In any event, it was conceded at the hearing of the application that the videos complained of had been removed from the social media platforms. Absence of an Alternative Remedy [13]  The Applicant has a more than satisfactory alternative remedy. A civil action for damages for defamation remains open to him should he wish to pursue it. He However, it should be noted that a complaint has already been lodged against him with the LPC, the statutory body specifically empowered and designed to investigate and adjudicate upon complaints of unprofessional conduct by legal practitioners. The existence of these adequate alternative remedies is fatal to an application for a final interdict. Conclusion [14] The Respondent has successfully demonstrated that the Applicant did not, in his founding papers, establish the requisite elements for a final interdict. The provisional order, therefore, cannot be made final and must be discharged. [15]  It appears that, based on the findings of the court, this judgment should be referred to the LPC for further inquiry regarding whether the Applicant has potentially breached the regulations concerning taking direct instructions from the public without the required certificate. Costs [16] The general principle is that costs follow the result. The Applicant initiated these proceedings and has been unsuccessful. The First Respondent has been compelled to come to court to protect her right to freedom of expression concerning a matter of genuine personal and public interest. There is no reason to deviate from the norm. The Applicant must bear the costs of this application. Order [17] The provisional interdict granted by Malindi J on 16 July 2024 under case number o75575/2024 is hereby discharged. 1. The Applicant is ordered to pay the costs of this application. 2. The Registrar of this Court is directed to refer the copy of this judgment to the LPC for further inquiry into possible violations of its rules by the Applicant. ML SENYATSI JUDGE OF THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, JOHANNESBUR G DATE APPLICATION HEARD : 15 April 2025 DATE JUDGMENT HANDED DOWN : September 2025 APPEARANCES Counsel for the Applicant:         Adv Tshisamphiri Mahafha Instructed by: SITHI ATTORNEYS Counsel for the Respondent:    Adv Reneilwe Malaka-Chabumba Instructed by:                            MAHUMANI ATTORNEYS ## [1](276/99) [2001] ZASCA 52 ; [2001] 3 All SA 342 (A); 2001 (3) SA 613 (SCA) at para 25; see also Dick v Dick  (241/2007) [2008] ZASCA 49 at para 8 [1] (276/99) [2001] ZASCA 52 ; [2001] 3 All SA 342 (A); 2001 (3) SA 613 (SCA) at para 25; see also Dick v Dick  (241/2007) [2008] ZASCA 49 at para 8 ## [2]V&A Waterfront Properties (Pty) Ltd and Another v Helicopter and Marine Services (Pty) Ltd and Others (392/2004) [2005] ZASCA 87; [2006] 3 All SA 523 (SCA); 2006 (1) SA 252 (SCA) (26 September 2005)at paras 21 and 22 [2] V&A Waterfront Properties (Pty) Ltd and Another v Helicopter and Marine Services (Pty) Ltd and Others (392/2004) [2005] ZASCA 87; [2006] 3 All SA 523 (SCA); 2006 (1) SA 252 (SCA) (26 September 2005)at paras 21 and 22 sino noindex make_database footer start