PROFESSION

Facts: Dr Hlophe is a leader of the opposition in the National Assembly, and a Member of Parliament elected on the party list of the first applicant, the MK Party. It was in that capacity that Dr Hlophe was designated, by the National Assembly, to take up one of the six seats on the JSC. A full court sitting in the Western Cape interdicted and restrained Dr Hlophe from participating in the processes of the JSC. The full court’s order stands as a fact. The primary question is whether the JSC acted rationally by refusing the MK Party’s request that its forthcoming sitting be postponed until the legal controversy surrounding Dr Hlophe’s designation to the JSC is resolved.

Application: The applicants seek two kinds of relief, one in the alternative to the other. The primary and final relief they seek is an order declaring a decision of the JSC to proceed with its October 2024 sitting to be irrational, unlawful and unconstitutional. In the alternative, the applicants seek interim relief restraining the JSC from proceeding with its work until a final decision about the rationality of its refusal to postpone its October 2024 sitting is taken, or until the controversy about the designation of the second applicant, Dr Hlophe, as one of its members, is resolved.

Discussion: The JSC acted rationally in refusing to postpone its October 2024 sitting. The JSC’s decision to proceed with its October 2024 sitting did not infringe, even prima facie, any of the MK Party’s or Dr Hlophe’s rights. Assuming in the applicants’ favour that their constitutional rights have been limited, the source of any such limitation was the full court’s order, not the JSC’s conduct in light of that order. The Chief Justice pointed out that the full court accepted that the JSC would lawfully be able to continue its work in Dr Hlophe’s absence. She also disclosed that the JSC had made its decision in view of section 18(2) of the Superior Courts Act 10 of 2013. The essence of the position spelled out in the JSC’s letter was that the full court’s decision is an “interlocutory order not having the effect of a final judgment” under section 18(2) of the Act, meaning that an application for leave to appeal would not automatically suspend it; that the full court’s order prevented the JSC from proceeding in Dr Hlophe’s presence; and that the JSC’s work could nonetheless lawfully proceed in Dr Hlophe’s absence. This position is not irrational.

Findings: Dr Hlophe’s absence from the October 2024 sitting of the JSC is not merely justified, it is mandated by the full court’s order. The fact of the full court’s order is justification enough for Dr Hlophe’s absence. The JSC was correct to conclude that it could lawfully proceed in Dr Hlophe’s absence. Dr Hlophe was restrained from participating the JSC’s work because he is a former Judge removed from office for gross misconduct. It was not suggested that the JSC was wrong to conclude that it could not proceed in Dr Hlophe’s presence. None of the reasons the JSC gave for refusing to postpone its October 2024 sitting were so tainted by mistakes of fact or of law as to render the decision to proceed irrational. The JSC’s decision to proceed with its October 2024 sitting was plainly rational. It is the full court, and not the JSC, which has decided that Dr Hlophe may not participate in the JSC’s proceedings. The JSC was required to act in light of the full court’s decision, which it must treat as valid and binding. The applicants cannot demonstrate, even prima facie, that the JSC’s decision to proceed was taken in breach of any of their rights.

Order: The application is dismissed.

WILSON J

Facts: Summons and particulars of claim were served on the defendants. The defendants delivered and served on the plaintiff’s attorneys a notice in terms of Uniform Rule 23(1) and pointed out to the plaintiff in what respects her particulars of claim do not disclose a cause of action and were thus vague and embarrassing. The court handed down judgment upholding the exception and striking off the plaintiff’s summons and particulars of claim as not disclosing a cause of action and being vague and embarrassing. The plaintiff then filed a document titled “Notice of Leave to Appeal and Conflict of Interest.” The applicant’s grounds for seeking the judge's removal from presiding in her application for leave to appeal are that the presiding judge did not read the papers; prejudged the issue; and has a close “family relationship” with a Mr Thobane who allegedly influenced the judge to find against the applicant.

Application: There are two applications before the court in which the applicant seeks an order that the presiding officer recuse himself from the matter; and an application for leave to appeal the order of the same presiding judge when the judge upheld the exception by the defendant in respect of the applicant’s particulars of claim which were found did not disclose a cause of action.

Unprofessional conduct: When the court enquired from the plaintiff’s attorneys as to who drew up the particulars of claim it was because of the concern noticed at the style and language used in the particulars of claim. The preliminary impressions were that the particulars of claim could not have been settled by an experienced litigation attorney or counsel. The particulars of claim are a mixture of facts and evidence and lack particularly and do not comply with the rules of civil procedure. The plaintiff’s attorneys having been asked by the judge on several occasions yet declined to deal with the application. The plaintiff and her attorney object to the court addressing the attorney as “ma’am” and does not say how the court should have addressed Ms Hadebe. The use of the word “ma’am” which is short for madam, is used every day in courts. The plaintiff and her attorney are clutching at straws.

Findings: The applicant's heads of argument in the exception application demonstrate a serious defect in the pleadings. This could either be that the drafter of the heads did not understand what he or she had to deal with or just did not care as long as a document titled "heads of argument" is filed. The heads of argument do not deal with issues raised in the Rule 23 notice. The heads deal with the defendants not being properly before court. The two paragraphs in the applicant’s heads are not only confusing but are misplaced and do not at all deal with the exception application. The applicant failed to satisfy the test to be applied to the true facts on which the application is based. The application for leave to appeal does not even come close to what is required. The application is full of diatribe and verbal attack on the judge and nothing about the actual judgment. The judgment is not appealable in that there is no final decision or the merits. This is an appropriate case to be referred to the Legal Practice Council in view of the false and scurrilous attacks on the presiding judge. The language used by the attorney for the applicant is not only inflammatory but borders on contempt which may amount to unprofessional conduct.

Order: The application for recusal is dismissed. The application for leave to appeal is dismissed.

MAKUME J

Facts: The applicant is the LPC. The first to fourth respondents are attorneys employed by the fifth respondent, Nhlabathi Gys Louw. They were once directors of the firm but have each relinquished their directorships because of the events giving rise to this application. The application is based substantially upon a dishonest scheme apparently conceived of and executed by the first respondent, Mr Louw, when he was the de facto managing partner of the firm. The scheme involved understating the firm’s annual fee income by paying the firm’s expenses directly from its trust account, and drawing down the professional fees due to the firm after the firm’s expenses had been deducted from them. This permitted the firm to state its annual fee income at just below R50 million. At the relevant time, the firm’s true fee income was more than R100 million.

Application: The applicant, the LPC, applies for an order striking the first to fourth respondents from the roll of legal practitioners. Where the facts underlying an application to strike off a legal practitioner are likely to be contested or obscure, the Legal Practice Council (LPC) will generally be required to convene a disciplinary committee in terms of Chapter 4 of the Legal Practice Act 28 of 2014 before approaching a court for a striking off order. A court nonetheless retains the power, in terms of section 44 (1) of the Act, to entertain a striking off application without a disciplinary inquiry having taken place.

Discussion: The purpose of the scheme was to avoid attracting the more onerous Broad Based Black Economic Empowerment (B-BBEE) requirements that would have been applied to the firm had its reported fee income exceeded R50 million, and with which the firm could not comply. Given that the firm relied, in large part, on conveyancing instructions from major financial institutions, a failure to comply with the B-BBEE requirements routinely applied by those institutions would probably have reduced drastically the number of instructions the firm could expect to receive. There is no serious dispute that this scheme is dishonest, and that Mr Louw implemented it deliberately to achieve the purpose set out above. Beyond that, however, the facts on which the LPC claims a striking off order become considerably murkier. The understatement of the firm’s fees is but one of several species of misconduct alleged in the papers against the firm. These range from essentially bribing estate agents to send conveyancing instructions to the firm, touting, tax evasion and failure to keep proper accounts. The LPC makes no attempt on the papers to differentiate between the first to fourth respondents when alleging knowledge of the wrongdoing or examining their degree of culpability for it. In addition, there are several issues hotly disputed on the papers, including whether the conduct underlying these allegations took place; whether, on a proper analysis, the conduct that did take place amounted to the transgression of the Code of Conduct for Legal Practitioners; and whether each of the first to fourth respondents committed the misconduct, knew about it, or were in a position to stop it.

Findings: The papers lack an adequate factual substrate. Mr Stocker, who appeared for the LPC, was unable to convince the court that the papers are adequate to support findings on each of the issues, in relation to each form of misconduct alleged, and in relation to each of the first to fourth respondents. The deceptive nature of the scheme leaves Mr Louw with a lot to answer for, but it cannot be said that his striking off is inevitable without a fuller picture of the firm’s affairs and his role in them. It is not clear that the other former directors misconducted themselves, and, if they did, whether they nevertheless remain fit and proper to practice. Without establishing what they knew or ought to have known, and when they knew or ought to have known it, that evaluation cannot take place. The impression arising from the papers is that Mr Louw ran the firm on his own. Ms Williams is his wife, and no account has been taken of the extent, if any, that this might affect her culpability or the appropriate sanction, if any is found. The third and fourth respondents’ shareholdings in the firm were not such as to ground the inference that they could realistically have challenged Mr Louw’s grip over the firm’s affairs. The LPC ought to have engaged the statutory powers before seeking the first to fourth respondents’ striking off. On the facts of the case, a disciplinary inquiry is necessary. The failure to hold one renders the LPC’s approach to the court premature.

Order: The application is dismissed. The applicant must convene a disciplinary inquiry in terms of section 37(4) of the Legal Practice Act 28 of 2024 before it takes any further steps to suspend or strike the first to fourth respondents from the roll of legal practitioners.

WILSON J (SUTHERLAND DJP concurring)

Facts: The court is called upon to deal with an unprecedented scenario. Dr Hlophe was appointed a judge in the Cape Provincial Division in 1995 and elevated to the position of Judge President of that Division in 2000. The justices of the Constitutional Court, led by Chief Justice Langa and Deputy Chief Justice Moseneke, lodged a complaint with the JSC against Dr Hlophe whereupon the matter was referred to the Judicial Conduct Tribunal. After having heard evidence and argument, the Tribunal provided its report and recommendation to the JSC. It concluded that Dr Hlophe was guilty of gross misconduct. The National Assembly (NA) designated to the Judicial Service Commission (JSC) a Member of Parliament (MP) being a former judge who was impeached by the NA for gross judicial misconduct. The NA’s designation of the MP in question, namely Dr Hlophe, triggered three applications. The Democratic Alliance, Freedom Under Law and Corruption Watch issued their separate applications respectively. 

Application: The applicant seeks interim orders pending a determination of the merits of the applicant's review of the National Assembly's decision to designate Dr Hlophe as its representative to the JSC, that Dr Hlophe be interdicted from participating in the processes of the JSC. The court is required to adjudicate whether the NA properly exercised its discretion to designate Dr Hlophe to the JSC.

Discussion: Adv Mpofu SC on behalf of MK strenuously submitted that Dr Hlophe is suitably qualified and fit and proper to serve on the JSC, bearing in mind his qualifications, achievements and expertise. Also, he is entitled to serve on the JSC because he is an MP and he cannot be prevented from performing his constitutional duties as MP. Furthermore, he was designated by the NA to serve on the JSC in accordance with the NA’s convention which is consistent with the Constitution. The golden thread is that the applicants conflate his position as impeached judge with his present position as MP. It is also submitted that the applicants’ whole theory and basis of the applications would fall away when Dr Hlophe is eventually reinstated as a judge. The respondents’ submission that the JSC would not have a quorum to take valid decisions if Dr Hlophe is interdicted from participating in that forum is incorrect. The majority support for decisions required by section 178(6) of the Constitution is the majority of members entitled to be present according to section 178(1) and not merely the majority present and voting. The absence of Dr Hlophe on the JSC would not be significant. There would still be five NA members represented on the JSC, constituting a majority of such members.

Findings: The NA failed to appreciate that it had a discretion in designating MPs to the JSC and consequently, it failed to exercise such discretion and "rubberstamped" MK’s nomination of Dr Hlophe. The first requirement for an interim interdict has been established by the applicants, demonstrating good prospects of success in the review application. All three applicant parties made valid points, indicating that the legitimacy of the JSC’s processes would be tainted, which cannot be repaired later if Dr Hlophe is allowed to participate in the JSC interviews and deliberations. This will undermine public confidence in the JSC. The applicants’ prima facie rights are threatened as there is a reasonable apprehension of irreparable and imminent harm if interdicts are not granted. In evaluating the balance of convenience, this is one of the clearest of cases to grant a restraining order and it is also constitutionally appropriate to grant the required interim interdicts. In granting same, Dr Hlophe will not be prevented in carrying out his obligations as MP. There was no satisfactory alternative remedy available to the applicants, given the imminent JSC interviews.

Order: Pending the determination of the merits of the applicant's review of the National Assembly's decision to designate Dr Hlophe as its representative to the Judicial Service Commission, Dr Hlophe is interdicted from participating in the processes of the JSC.

BAQWA J, DAFFUE J and COLLIS J

Facts and issue: Appeal against the dismissal of Claim A of appellant, Soft Coffee, with costs. The appellant was a plaintiff in an action brought in this court. The appellant claimed reimbursement from the respondent as defendant for the pecuniary loss it had suffered because of theft of money committed by a practising attorney. The appellant’s case was that the money had been duly entrusted by it to the attorney during his practice, as is required by s26(a) of the Attorneys Act 53 of 1979.

Discussion: The respondent’s case is that it is not liable to appellant for the loss of money made available as loans by the appellant. The respondent cannot rely on section 47(5) of the Act because this is not a case of Mr Stephens being instructed to make an investment or where the Attorney was merely a bystander or conduit. Mr Stephen’s intention was to steal the said money. The funds were not received into his trust account as an investment or for any other legitimate reason. The appellant has shown a sufficient element of entrustment to bring it within the ambit of section 26(a). In order to determine whether the money was “entrusted by or on behalf of” the appellant to the respondent it is necessary to consider what the appellant’s intention was when the monies were deposited into the trust account of Dadic Attorneys.

Findings: The court a quo erred in not considering the undisputed evidence of Picone that the loan amounts would be paid into the trust account of Dadic Attorneys who would hold same in trust and only pay same over to the purported borrowers when the mortgage bonds over the immovable properties had been registered. The court a quo misdirected itself in finding that the only viable inference to be drawn is that the appellant did not intend an entrustment and that the monies were to be paid over to Atomic and Flake Ice. It has been established that the money was not invested and that it was entrusted by the appellant to Stephens during his practice, as is required by section 26(a).

Order: The appeal in respect of the appellant’s Claim A in the summons is upheld and the first paragraph of the order of the court a quo is set aside. In regard to Claim A, the defendant is directed to pay the first plaintiff the sum of R6,700,000, together with interest thereon at the prescribed mora rate of 10.25 % per annum, as well as the costs.

Facts: The applicant is a 47-year-old male South African citizen. He holds an LLB degree, conferred on him by the University of South Africa. He commenced his LLB studies in 2016. He completed them in 2023. He therefore obtained his LLB degree over more than four years of study. He has never been admitted as an attorney or advocate previously. He has met the requirements for service of his application for admission on the relevant Societies of Advocates and the Legal Practice Council as set out in section 24(2)(d) of the Legal Practice Act 28 of 2014 . On receipt of the application, the LPC considered it, but was not satisfied that the applicant meets the requirements for admission and did not issue the certificate.

Application: The LPC requested the applicant to withdraw the application. The applicant did not remove the application from the unopposed roll of 20 March 2024. This prompted the LPC to instruct its legal representative to attend court to secure the removal of the matter from the roll to file an answering affidavit. The court acquiesced the LPC’s request and reserved costs for that day’s appearance.

Discussion: Until 1 November 2018, the Admission of Advocates Act 74 of 1964 (AAA) regulated the admission of advocates. It set out various requirements for their admission. It is common cause that the applicant meets the requirements for admission under that Act. The difficulty confronting the applicant is that on 1 November 2018, the LPA came into operation, prescribing additional requirements. The additional requirements are set out in sections 26(1)(c) and (d). The applicant has not complied with these requirements. He has not undergone all the practical vocational training requirements as a candidate legal practitioner prescribed by the Minister and passed a competency-based examination or assessment for candidate legal practitioners as may be determined in the rules. The applicant seeks to avoid these requirements by invoking section 115. It provides for the admissions of persons who were previously entitled to be admitted and enrolled as an advocate or attorney under the Act. He relies on the full court’s judgment in Ex parte Goosen (GJ).*

Findings: The applicant fails on a plain reading of section 115. The date referred to in section 120(4) is 1 November 2018. It is common cause that he did not meet the requirements for admission in terms of section 3 whilst the AAA was still in force, that is, prior to 1 November 2018. Applicant’s reliance on the remarks in Goosen is unsustainable. What the full court posited is that persons who met requirements to be admitted in terms of section 3 may invoke section 115 even if their application for admission is instituted after 1 November 2018. The applicant does not fall under this category either. Since the applicant did not meet the requirements to be admitted in terms of section 3 of the AAA prior to 1 November 2018, when the LPA came into effect, it did not take away his right to be admitted in terms of section 3 because that right had not vested. Therefore, the requirements for admission set out in sections 24 and 26 of the LPA apply to him unequivocally.

Order: The application is dismissed with costs on the attorney and client scale, including the LPC’s costs of 20 March 2024.

MODIBA J (SUTHERLAND DJP concurring)

* See Ex parte: Goosen [2019] ZAGPJHC 68 and Ex parte: Goosen [2019] ZAGPJHC 154.

Facts: The plaintiff provided professional services as counsel, representing the RAF, and on the brief and instructions of the respondents. Their relationship operated for four years. During the subsistence of their contractual relationship, the respondents made a practice to pay the plaintiff every four to five months, for the services he would have provided in various RAF matters over time. According to the respondents, they operated on the widely accepted practice among legal practitioners that litigation in RAF matters invariably proceeded with massive delays, thereby affecting payment of fees that would be due to legal practitioners. The respondents contended that the applicant was always aware that he would receive his fees when the respondents received payments from the RAF. The respondents also contended that due to non-payment or delays in payment of fees by the RAF, in one instance, they also concluded a settlement agreement in terms of which they resolved to pay some of the money to the applicant.

Application: The applicant claims payment of R1,392,973.20 in full and final settlement of all his outstanding invoices, with interest. The amount claimed being the total sum of fees accumulated in 30 matters. The applicant claimed that the respondents refused or neglected to pay the fees that were due to him, in contravention of the code of conduct that regulates the relationship and or payment of fees, between counsel and briefing legal practitioners. The respondents raised points in limine regarding the non-joinder of the RAF and lis pendens.

Discussion: The subject matter of the application relates to outstanding payments for work done in litigation against the RAF. The respondents submitted that the RAF had a significant interest in the outcome of the application and should have been joined. The respondents averred that there is a pending litigation, on the same cause of action, with the same parties, seeking the same relief. The applicant elected not to engage with these allegations. They remained unchallenged. Upon close examination of the relationship between the parties, they enjoyed a mutually beneficial business relationship over a period of four years. They had an understanding on how briefs were sent and accepted and how payments would be made for services rendered. This fact is evident in the settlement agreement in which the applicant accepted payment of R170,000 as part payment of his fees.

Findings: The dispute arose when the applicant got agitated for payment outside the standing agreement and the long-standing terms of engagement. The applicant has not provided any basis upon which it should be permissible for him to resile from the settlement agreement. The applicant has also not established grounds upon which the long-standing manner of engagement should be abandoned or set aside in favour of compliance with the provisions of the LPC Code of conduct on how he ought to have engaged with the respondents. There has been no credible evidence to suggest that the applicant was not a willing participant or that he was coerced in the manner in which he engaged with the respondents. The applicant has failed to establish a case that entitled him to the relief sought. The applicant has fallen short of establishing the respondents’ alleged breach of Rule 7.8. of the General Council of the Bar of South Africa: Uniform Rules of Professional Conduct, which prohibits the instructing attorney and counsel from agreements that counsel would await payment of the fees payable on that brief until the attorney shall have received them from the lay client.

Order: The point in limine raised by the respondents on the non-joinder of the RAF is upheld. The point in limine raised by the respondents, namely, lis pendens is upheld. The application in terms of the notice of motion is dismissed with costs.

SIPUNZI AJ

Facts: In 2019, a complaint was lodged with the Legal Practice Council by Squire Smith & Laurie Inc (Squires) regarding applicant’s conduct. Squires had been appointed by applicant’s firm, NJ du Plessis & Associates (NJDP), as local correspondent. Concerns were raised about the way NJDP had billed the State Attorney for work allegedly carried out by Squires when this had not been the case. Also in 2019, a complaint was lodged from the Eastern Cape Department of Education pertaining to NJDP’s alleged abuse of court process. The applicant followed up with the LPC about the complaints and heard that the complaint from Squires had been dismissed. However, in 2023 he was caught off guard when he was informed that the Investigating Committee had considered the matter in 2022 and referred it to the Disciplinary Committee.

Application: The applicant had indicated that he intended to rely on the undue delay, the respondent’s failure to reply to his response to the allegations levelled against him, and the dismissal of the complaint. However, at the proceedings, the Disciplinary Committee dismissed the applicant’s points in limine. This is an application for the review and setting aside of the decisions taken by the Disciplinary Committee. The applicant also seeks an order interdicting the LPC from continuing with the disciplinary proceedings, pending the outcome of the application, and directing the LPC to refer one of the complaints back to the Investigating Committee.

Discussion: The disciplinary proceedings against the applicant have not been finalized. The applicant’s case, in the present matter, rests on the delay that has occurred and the prejudice that has resulted. The complaint in the Squires matter was lodged in February 2019 and the disciplinary proceedings commenced in January 2023. This represents a period of almost four years. The closest that the LPC comes to explaining the delay is an allusion to the managerial shortcomings and inevitable complications caused by the transition of the administration of the legal profession from the Cape Law Society to the provincial LPC, involving two different offices. This is inexcusable. A professional body that has been established to regulate a profession must conduct itself according to the same high standards expected from the practitioners themselves. The delay in question was undue and chiefly attributable to the LPC’s inaction.

Findings: The applicant has drawn attention to the prejudice caused by the delay, both to his personal life and to his professional life. This is, to some extent, unavoidable, given the nature of the complaint and the inevitable anxiety that accompanies such proceedings. Importantly, however, there is no indication that the delay has materially prejudiced the applicant in the conduct of the proceedings themselves. The four-year delay in the present matter, the efforts made by the applicant to resolve it, and the inexcusable conduct on the part of the LPC must be balanced against the remaining factors. These include the absence of material prejudice caused to the applicant and the serious nature of the complaint itself. Considered holistically, the undue delay cannot be seen to have crossed the threshold for the proceedings to be deemed unreasonable and unfair. Similarly, when all the factors pertinent to the Department’s complaint are considered holistically, any undue delay has not inevitably and irremediably tainted the overall substantive fairness of the proceedings were they to continue. That threshold has simply not been crossed.

Order: The application is dismissed. The applicant is directed to pay the LPC’s costs on a party-and-party basis.

LAING J

Facts: Mr Selowa lodged a complaint against the respondent with the applicant LPC. The applicant is the provincial office within whose jurisdiction the respondent conducts his practice and with whom the respondent is registered. Attached to the complaint was a written agreement of sale for immovable property entered into between Mr Selowa and Ms Swartland. In terms of that agreement of sale, Mr Selowa purchased from Ms Swartland a property. The payment was duly made and received and subsequently payment made to the seller by the respondent. The respondent pertinently recorded that he did not take instructions from Mr Selowa to act on his behalf nor had he received instructions from any person to do so. There were several allegations made by Mr Selowa relating to his apparent failed attempts to communicate with the respondent over the period following the signature of the agreement of sale and in this regard, the respondent produced screenshots of various communications on WhatsApp to dispel this.

Application: With only three weeks’ notice, the applicant brought a two-part application against the respondent, a practicing referral advocate. Initially in part A, the applicant seeks an order for the suspension of the respondent from the roll of practitioners on an urgent basis and thereafter, in part B, for an order striking his name from the roll of legal practitioners. In the counter-application, the respondent seeks to review and set aside the resolution authorizing the institution of the present proceedings. He also seeks an order that a new hearing before an investigating committee of the applicant, of which he will be given notice, be convened.

Discussion: It is apparent from the minute that evidence was given by Mr Selowa which differs materially from the version of the respondent, and is also at variance with the written agreement of sale. There are, in addition, facts recorded which never formed part of the complaint, and to which the respondent quite obviously did not have any opportunity to respond to. There are patent disputes of fact and variances which would need to be explained. For this reason, it cannot be said that the misconduct of which the applicant complains the respondent has made himself guilty of, has been established on a preponderance of probabilities. Neither the administrative officials, investigating committee, member of the provincial council, deponent to the founding affidavit or the attorneys of record for the applicant, observed that the notice to attend the discussion, had not been sent to the correct email address. This more so particularly since the email address to which the application was sent is in fact the correct email address of the respondent. A singular oversight may occur and be excusable but there is simply no explanation how such a manifest error was overlooked on multiple occasions by multiple professional persons.

Findings: Immediately on service of the application upon him, the respondent sent an email to the applicant drawing to its attention that he had never received notice of the discussion and requesting that proof that notice had indeed been furnished to him be provided. This request remained unanswered, and he was directed to file his answering affidavit. Considering the concession that the respondent had not been given notice of the date of the discussion, the applicant nonetheless persisted in seeking an order for the suspension of the respondent. With the material before the applicant and its investigating committee, there was no prima facie case for either the suspension or the striking of the respondent from the roll. On the face of it, at its worst, it was an error of judgment in assisting the seller in the way that he did. There is nothing to indicate that the respondent was ever notified of the findings of the investigating committee or of his right to appeal. Since the failure on the part of the applicant to discharge its obligations to the respondent has effectively rendered any right to appeal nugatory, the only avenue open to the respondent to seek redress is a review under the common law.

Order: The application is dismissed. The findings and decision of the investigating committee are both reviewed and set aside. The complaint is referred back to the applicant to be enrolled before a newly constituted investigating committee for consideration of the complaint.

MILLAR J

Facts: The court suspended the respondent, Berkowitz, from practicing as an attorney for own account, pending finalisation of an application for him to be struck from the roll of attorneys. The court then also ordered Berkowitz to show cause why his name should not be struck from the roll of legal practitioners. A preliminary issue arose concerning the way the matter reached the court that requires consideration before the merits of the main application. The LPC, although it had conducted a disciplinary investigation into Berkowitz' affairs, had not yet proceeded with a disciplinary hearing before a disciplinary committee. Instead, it relied on its residual common law authority to approach the court directly concerning misconduct of a legal practitioner, recognised in section 44 of the Legal Practice Act 28 of 2014, before any such disciplinary hearing had been conducted. Berkowitz questioned the LPC's decision to approach the court rather than proceed with the matter in-house. The general gist of his concern was that all the allegations of misconduct levelled against him were of such a nature that they could easily be resolved inter se, and that there was no need to burden this court with them.

Application: The LPC brings this application in exercise of its disciplinary mandate. When the matter came before court on the extended return date, it was in effect an application for a final order striking Berkowitz' name from the roll of legal practitioners. The court first deals with the preliminary issue regarding the way the application served before court. In the ordinary course of events, a disciplinary matter concerning a member of the LPC will reach the court only once a full disciplinary hearing before the LPC has been concluded. The LPC approached the court with an application for suspension and striking, rather than to proceed with further in-house investigation and a disciplinary hearing.

Preliminary issue: The LPC, even absent reliance on section 43, which explicitly confers on it such, has further authority to proceed against a legal practitioner in this court in a misconduct matter where it has neither commenced nor concluded a formal disciplinary hearing of its own. This authority derives from the LPC's common law right to do so, which in turn is sourced in this court's inherent power to hear and decide misconduct matters concerning legal practitioners, as its officers. The LPC may, where it is of the prima facie view that a practitioner is no longer fit and proper, apply to the court for that practitioner to be suspended from practice or struck from the roll without having held a disciplinary hearing of its own. It may in such cases bypass its own disciplinary process and place the matter before the court directly. Berkowitz' reliance on the administrative law principle of exhaustion of internal remedies does not come to his aid. The question is whether the charges against Berkowitz that existed at the time the decision was taken to approach the court are such that they would justify an opinion of the LPC's then that, if proven, they would render him unfit and improper. For the reasons that follow, the answer must be a yes.

Findings: The LPC had ample grounds upon which to conclude, within its common law authority to do so, that Berkowitz' case should be referred to court before a disciplinary hearing had been held. The main charge initially against Berkowitz was that he had for several periods practiced for own account without a Fidelity Fund certificate. Berkowitz failed to submit his auditor's reports for several financial years or failed to do so timeously. Berkowitz, in contravention of Rule 54, submitted his 2018/19 auditors' report seven months late and has since 18 March 2020 not submitted any auditors' reports as required. He failed to pay his LPC membership fees for several years. Further, he failed to cooperate with the LPC and with the court as expected of a legal practitioner during the ongoing disciplinary process. Berkowitz failed to comply with orders of the court in several respects and was untruthful in several instances in his communication with the LPC and before the court. Berkowitz has had ample opportunity and much time to "sort things out" with the LPC as he continues to say he would do; but to date he has not done so, remaining supine. Berkowitz is no longer fit and proper to practice as an attorney.

Order: The first respondent is struck from the roll of attorneys (legal practitioners) of the Honourable Court.

BRAND AJ (with MBONGWE J)

Facts: During October 2023, legal practitioners cast their votes in support of the candidates they wanted to be elected as board members of the Legal Practitioners' Fidelity Fund (the Board). The elections were conducted per the procedures as determined by the Legal Practice Council (LPC). After the election closed, the LPC took the position that the procedures and methodology it had followed, in conducting the election, were based on its own incorrect interpretation of Rule 46 of the Legal Practice Council Rules. In January 2024, it informed the legal fraternity that, because of this irregularity, it had decided to not tally the votes cast in the October 2023 election and would, instead, re-run the election.

Application: Applicants have brought an application (Part B) to have the LPC’s decisions to not tally (and thereafter, release the outcome of the October 2023 votes) and to re-run the election, reviewed and set aside. Additionally, they seek an order directing the LPC to tally such votes, release the outcome and publish the names of the successful candidates in the Government Gazette. In the interim, they, on an urgent basis, seek an order from this court interdicting the LPC from announcing a date, calling for nominations of candidates, and/or conducting a re-run election (Part A).

Discussion: The pertinent issue is whether the LPC was empowered to make the impugned decisions. The LPC, despite repeated invitations from the court during the hearing, could not refer the court to the specific provision in Rule 46 (or elsewhere within its statutory framework) in terms of which it was empowered to, after the close of voting, declare an election to have been irregular or to decide to not comply with its obligations per Rules 46(15), 46(16) or 46(17). The LPC contended that it was entitled to abandon the election process on the principle of legality. To contend that the doctrine of legality empowers an administrative body to act ultra vires or irrationally, is to contend the diametrical opposite of the very essence of the doctrine. Unfortunately, the LPC’s submissions, to a large extent, were based on its erroneous view of itself as final arbiter of the correct interpretation of Rule 46(1) and that, having felled its final judgment in this regard, it had the power to declare the October 2023 election irregular or unlawful.

Costs: The LPC, before filing its answering affidavit, called for nominations for candidates and set out a timeline for the re-run election. The LPC afterwards files an answering affidavit in which it, rather obtusely, informs the court tasked with deciding whether to interdict the call for nominations, setting of a date and re-run of the election, that the call for nomination is a fait accompli. The LPC’s conduct, both in calling for nominations and then in failing to present a cogent basis for opposition, is that of an organization which, regardless of legal scrutiny, will at all costs remain intransigent. Instead of properly assessing the basis of its opposition, the LPC initiated costly election proceedings in what can only be reasoned as an attempt to frustrate the relief sought herein by the applicants. The LPC, in doing so, paid no regard to the fact that it is, as least partially, funded by the public (insofar as legal practitioners are considered “the public”). The costs already incurred in a reckless, ultimately ill-fated attempt to force a re-run election, in light of the order, are wasted.

Order: Pending the finalisation of the review application brought by applicants in Part B hereof, the LPC is interdicted and prohibited from announcing an election date for the election of members to the Board of The Legal Practitioners' Fidelity Fund, calling for the nomination of candidates, and from conducting elections for the appointment of members. The LPC shall pay the costs of NADL and Mvuzo Notyesi on the attorney-own-client scale. The LPC shall pay the costs of the Black Lawyer’s Association on an attorney-own-client scale. The LPC shall pay the costs of the Board of The Legal Practitioners' Fidelity Fund on an attorney-own-client scale.

STRYDOM AJ

Facts and issue: In dealing with the requirement that the Applicant must be a fit and proper person to be admitted as a legal practitioner, the applicant disclosed in her founding affidavit that while she was employed by the National Health Laboratory Services as a medical technologist, she faced disciplinary charges because she fell asleep during the night shift and she was dismissed for dereliction of her duties. During her fourth year at University, she was charged with plagiarism. The LPC raised concerns that the applicant’s misconduct involved dishonesty and that there appeared to be a lack of remorse on her part.

Discussion: The applicant was required to provide a psychological report for further consideration to the LPC. The applicant complied with this requirement. Having considered the psychological report, the LPC noted that it was not favourable, in that the psychologist expressed the view that although the applicant was indeed a fit and proper person who could be admitted to practice, she should be monitored for a period of 12 months. In the circumstances the Council did not support the applicant’s admission application and decided to oppose the application should the applicant proceed with it. Although the LPC characterized the psychological report as being unfavourable to the applicant, the court is of the view that, reasonably interpreted, the report is in fact to a very large extent favourable to the applicant.

Findings: The positive aspects of the report substantially outweigh the few negative aspects highlighted by the LPC. The applicant appeared relaxed throughout the session with the expert, was well groomed and kept and maintained appropriate eye contact throughout. She displayed appropriate emotional expressions based on the context. Her thought processes appeared appropriate, and no suicidal or homicidal ideations were noted. The court is satisfied that the applicant is a fit and proper person to be admitted as a legal practitioner.

Order: The applicant is admitted as a legal practitioner of the High Court of South Africa in terms of section 24(2) of the Legal Practice Act 28 of 2014.