Brief Summary

Legal Practice — Complaints against legal practitioners — Review of dismissal of complaint — Applicants challenged the dismissal of their complaint against an attorney for alleged misconduct, including falsification of documents and forgery — Legal Practice Council dismissed the complaint without investigation, citing insufficient evidence and lack of jurisdiction — Applicants sought review under the Promotion of Administrative Justice Act, asserting procedural and substantive unlawfulness — Court held that the LPC's dismissal was reviewable, and that the LPC had a duty to investigate the allegations, regardless of the pending High Court matter or criminal complaint.

Comprehensive Summary

Summary of Judgment

1. Introduction

The matter concerned an application in the High Court for the judicial review of a decision by the South African Legal Practice Council and related office-bearers to dismiss a complaint of professional misconduct made against an attorney. The applicants sought to set aside the dismissal and to compel a proper investigation under the statutory complaints framework.

The applicants were GroundUp News NPC, together with Mr Nathan Geffen and Mr Raymond Joseph. The respondents were the South African Legal Practice Council (LPC), its chairperson, Mr Y Mayet (the individual who constituted the investigating committee for purposes of the decision), the Gauteng Provincial Legal Practice Council, and Mr Lesley Nkhumbuleni Ramulifho (the attorney complained of). Although several respondents were cited, only Mr Ramulifho opposed the review application, and he did so by raising points of law rather than filing an answering affidavit on the merits.

The procedural history was that Mr Geffen and Mr Joseph, together with their attorney of record (Mr Louw), lodged a complaint with the LPC concerning Mr Ramulifho’s conduct in earlier interdict proceedings brought by him against GroundUp. After an exchange of papers, the complaint was referred to an investigating committee constituted by a single person, Mr Mayet, who dismissed the complaint on 13 October 2020. The LPC advised the complainants that no internal appeal was available because an appeal tribunal had not yet been established. The applicants then approached the High Court to review the dismissal, relying primarily on the Promotion of Administrative Justice Act 3 of 2000 (PAJA), and in the alternative on legality review principles.

The general subject-matter of the dispute was the scope and content of the LPC’s statutory duty to investigate complaints of misconduct against legal practitioners under the Legal Practice Act 28 of 2014 (LPA), and whether it was lawful to dismiss a complaint for asserted insufficiency of evidence without further investigative steps.

2. Material Facts

There was no factual dispute before the court. The fifth respondent filed no answering affidavit dealing with facts, and the Gauteng Provincial Legal Practice Council provided an explanatory affidavit describing process while not opposing. As a result, the applicants’ factual version was treated as undisputed for purposes of the review.

GroundUp was described as an online publication focusing on matters of public interest, particularly social justice. Mr Geffen was its editor, and Mr Joseph a journalist who had written for GroundUp. Mr Ramulifho was an attorney who had featured negatively in a series of articles written by Mr Joseph concerning a recipient of grants from the National Lotteries Commission.

Mr Ramulifho instituted an urgent interdict application aimed at preventing publication of allegations about him, securing removal of certain articles from GroundUp’s website, and obtaining a retraction. That interdict application was struck for lack of urgency. Mr Ramulifho launched the application through his own firm and acted as his own attorney.

Following this interdict litigation, Mr Geffen and Mr Joseph (together with their attorney) lodged a complaint with the LPC alleging that, in prosecuting the interdict proceedings, Mr Ramulifho had falsified documents and forged signatures on affidavits. The judgment characterised the allegations as serious, including perjury and forgery, and noted their significance when levelled against an officer of the court.

After Mr Ramulifho responded to the complaint (his response being described as raising procedural objections rather than dealing with substance) and the complainants replied, the complaint was referred to an investigating committee. The investigating committee consisted of a single person, Mr Mayet.

The investigating committee dismissed the complaint, stating in substance that Mr Ramulifho had provided a reasonable explanation for the allegations and that there was no reasonable prospect of a misconduct charge succeeding. The LPC further advised the complainants that an appeal was not possible because an appeal tribunal had not yet been established.

The Gauteng LPC’s explanatory affidavit acknowledged that the matter had been considered only on the papers (the complaint, Mr Ramulifho’s procedural response, and the complainants’ reply). It also indicated that the complaint was dismissed because the conduct “did not necessarily warrant misconduct proceedings”, while simultaneously recording that, if the allegations were true, serious misconduct would be involved, and despite the absence of any substantive explanation from Mr Ramulifho.

3. Legal Issues

The central legal questions the court was required to determine were whether the LPC’s dismissal of the complaint was reviewable and, if so, whether it was lawful in light of the statutory complaints framework.

The court had to decide, in particular, whether the decision to dismiss and close the file was final and had external legal effect, such that it could be reviewed by the High Court; whether the applicants (especially Mr Geffen and Mr Joseph) had locus standi; and whether the LPC was entitled to dismiss a complaint on the basis that the complainants had not provided sufficient evidence, without taking further steps to investigate.

The dispute primarily concerned the application of law to undisputed facts and the correct interpretation of the LPC’s statutory duties, including whether the investigating committee committed an error of law, acted irrationally or unreasonably, failed to take relevant considerations into account, and failed to comply with section 37(3) of the Legal Practice Act. It also engaged questions of procedural legality and institutional role, namely whether the investigating committee impermissibly treated its function as if it were adjudicating motion proceedings with an onus on the complainant.

4. Court’s Reasoning

The court addressed and rejected several preliminary objections raised by Mr Ramulifho in his Rule 6(5)(d)(iii) notice, distinguishing between points that went to reviewability and standing, and points that in substance sought to engage the merits of the underlying misconduct complaint (which the court regarded as not being the issue before it).

On locus standi, the court rejected the contention that only Mr Louw (the deponent to the original complaint affidavit) could challenge the dismissal. It held that Mr Geffen and Mr Joseph were also complainants and were entitled to bring the review. The court considered confirmatory affidavits in the complaint process to be irrelevant to standing in the review, and noted that Mr Geffen and Mr Joseph confirmed on oath before the High Court that they were complainants. While GroundUp’s standing was disputed (and the public-interest and related standing grounds were not pleaded), the court held it was unnecessary to decide GroundUp’s standing because standing was adequately established through Mr Geffen and Mr Joseph.

On the argument that the LPC should have waited for the outcome of the earlier High Court litigation or a criminal investigation, the court held that neither the pending interdict proceedings nor a criminal complaint prevented the LPC from investigating a complaint of misconduct. The court reasoned that the proceedings could have different consequences and burdens of proof, and that each process was required to follow its own trajectory. It further reasoned that requiring a court outcome first could allow a litigant to delay LPC processes.

On finality and reviewability, the court rejected the contention that the decision was non-final because the complainants could lodge a “proper” complaint later. It held that the LPC had closed its file, treated the matter as final, advised that there was no internal appeal, and indicated that the complainants could proceed to court. On that basis, the court concluded the dismissal was final, had external legal effect, and was reviewable.

The core of the judgment concerned the interpretation and application of section 37 of the Legal Practice Act. The court emphasised the statutory context, including the LPA’s purpose of regulating the profession in the public interest and ensuring accountability to the public. It interpreted section 37(1) as requiring investigating committees to conduct investigations of all complaints of misconduct, and section 37(3) as creating a sequential scheme: first an investigation, and thereafter either referral to a disciplinary committee if prima facie misconduct warranting proceedings may be present, or dismissal if the conduct does not necessarily warrant misconduct proceedings.

A central aspect of the court’s reasoning was that an investigating committee is not a court and does not decide the complaint on the basis of parties placing admissible evidence before it with a formal onus. The court held that there is no onus on a complainant to present a complete case fit for adjudication. Rather, the committee must investigate the issues raised, including by obtaining information and interviewing witnesses where required. The court considered that any interpretation placing the burden on members of the public to “build” a complete case would undermine the public-protective purpose of the LPA.

The court considered Mr Ramulifho’s submission that “reading the papers” constituted an investigation. While accepting that in some cases paper consideration might suffice, the court held it did not in this matter, particularly because the committee itself regarded the alleged conduct as serious if true. In the court’s view, the committee’s approach—ending its enquiry at the point of concluding the complainants had not produced sufficient evidence—amounted to a failure to perform the statutory duty to investigate.

The court also relied on the existence of extensive investigative powers in the LPC Rules, specifically Rule 40, and held that the committee’s failure to use those powers was not justified on the record. The committee was required to exercise its investigative function rather than insisting the complainants procure verification elsewhere before the LPC would act.

The court further held that the committee misconstrued its role by stating that allegations must first be tested by another authority or supported by verification to be presented to the LPC. The court regarded that approach as inconsistent with the statutory scheme, in which investigation is precisely the function preceding any disciplinary adjudication. The judgment drew a functional distinction: the investigating committee must investigate and assess whether there is available prima facie evidence suggesting misconduct warranting proceedings, while the disciplinary committee is the body that must adjudicate and test evidence if the matter is referred.

In addition to the error of law, the court found the decision irrational and unreasonable on the record. A key example was the committee’s reliance on a statement that Mr Ramulifho had given a reasonable explanation of his conduct, whereas his response contained procedural objections and no substantive explanation. This disconnect supported the conclusion that the decision was not rationally connected to the information before the decision-maker and was so unreasonable that no reasonable person could have made it in the circumstances described.

5. Outcome and Relief

The court reviewed and set aside the LPC’s decision dismissing the complaint, and held that the failure to investigate and the dismissal were unlawful, invalid, and unconstitutional. The matter was remitted to the LPC with a direction to convene an investigating committee in terms of section 37(1) and to conduct a proper investigation in accordance with the Legal Practice Act read with the Legal Practice Council Rules, 2018.

The court ordered that Mr Y Mayet was not to be involved in the fresh investigation. It further ordered that the costs occasioned by Mr Ramulifho’s opposition were to be paid by Mr Ramulifho, including the costs of two counsel where employed. The court explained that the applicants would have had to bring the application in any event, and thus awarded only the costs attributable to opposition.

Cases Cited

No external case law was expressly cited in the judgment.

Legislation Cited

Promotion of Administrative Justice Act 3 of 2000.

Legal Practice Act 28 of 2014.

Rules of Court Cited

Uniform Rule of Court 6(5)(d)(iii).

Legal Practice Council Rules, 2018, Rule 40.

Held

The dismissal of the misconduct complaint and the associated failure by the LPC’s structures to investigate it were held to be unlawful, invalid, and unconstitutional. The decision was reviewable as final administrative action with external legal effect. Mr Geffen and Mr Joseph were held to have standing to bring the review.

Section 37 of the Legal Practice Act was applied to require that investigating committees must investigate complaints and cannot lawfully dismiss them on the basis that complainants have not produced sufficient evidence, without exercising the committee’s investigative powers and without following the statutory sequence culminating, where appropriate, in referral to a disciplinary committee. The investigating committee was found to have committed an error of law by misconstruing its role and by requiring prior “testing” or verification by other fora.

The matter was remitted for a fresh investigation by a properly convened investigating committee, with Mr Mayet excluded from involvement, and costs of opposition were awarded against Mr Ramulifho.

LEGAL PRINCIPLES

The judgment applied the principle that statutory bodies exercising disciplinary-regulatory functions must act consistently with their empowering provisions and purposes. In the context of the Legal Practice Act, the regulatory framework is directed at public-interest regulation and accountability, and this informs the interpretation of the LPC’s duties when handling complaints of misconduct.

Section 37 of the Legal Practice Act was applied as establishing a mandatory, sequential process: an investigating committee must first conduct an investigation into a complaint; thereafter it must determine on the available prima facie evidence whether the practitioner may be guilty of misconduct warranting misconduct proceedings (in which case referral must follow) or whether the conduct does not necessarily warrant proceedings (in which case dismissal may occur). The committee’s function at this stage is not to adjudicate finally on contested evidence, but to investigate and assess whether disciplinary adjudication should be triggered.

The court applied the principle that an investigating committee within a professional regulator is not equivalent to a court conducting motion proceedings. A complainant does not carry a litigational onus to present a complete, trial-ready case. The regulator’s investigative function includes using its conferred powers (including those under the LPC Rules) to obtain information and follow up allegations, particularly where the alleged conduct, if true, would constitute serious professional misconduct.

The judgment further applied legality-based standards of review, including that administrative decisions must be rationally connected to the information before the decision-maker and must not be so unreasonable that no reasonable decision-maker could have reached them on the material available.

Groundup News NPC and Others v South African Legal Practice Council and Others (20150/2021) [2023] ZAGPJHC 559; 2023 (4) SA 617 (GJ) (24 May 2023)