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[2024] ZAECELLC 38
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Du Plessis v Legal Practice Council (EL967/2023) [2024] ZAECELLC 38 (20 August 2024)
FLYNOTES:
PROFESSION – Legal Practice Council –
Disciplinary
process
–
Delays
and prejudice – Proceedings regarding two complaints not
finalised – Almost four years from complaint to
proceedings
commencing – Factors considered including absence of
material prejudice to applicant and serious nature
of complaint –
Considered holistically, the undue delay not having crossed
threshold for proceedings to be deemed unreasonable
and unfair.
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, EAST LONDON CIRCUIT COURT)
Not
Reportable
CASE
NO. EL967/2023
In
the matter between:
NICOLAAS
JOHANNES DU PLESSIS
Applicant
and
LEGAL
PRACTICE COUNCIL
Respondent
JUDGMENT
LAING
J
[1]
This is an application
for the review and setting aside of various decisions taken by a
Disciplinary Committee of the respondent
in relation to two
complaints lodged against the applicant. The applicant also seeks an
order interdicting the respondent from
continuing with the
disciplinary proceedings, pending the outcome of the application, and
directing the respondent to refer one
of the complaints back to an
Investigating Committee.
Applicant’s
case
[2]
The applicant emphasises
that he does not challenge the disciplinary proceedings. He attacks,
instead, the Disciplinary Committee’s
decision regarding
certain points raised
in
limine
on
29 March 2023. The background is set out below.
[3]
On 25 February 2019, Mrs
AL Friderichs, from the legal practice of Squire Smith & Laurie
Inc (‘Squires’), lodged
a complaint with the respondent
about the applicant’s conduct. The complaint pertained to the
appointment by the applicant’s
legal practice, NJ du Plessis &
Associates (‘NJDP’), of Squires as local correspondents
for matters requiring a
Qonce address; NJDP is based in East London.
More specifically, Mrs Friderichs raised concerns about the way NJDP
had billed the
State Attorney for work allegedly carried out by
Squires when this had not been the case and when Squires had not
submitted any
invoices to NJDP in that regard.
[4]
The applicant responded
on 9 April 2019. He refuted Mrs Friderichs’s allegations and
pointed out that the fees for which his
practice had billed were
permitted in terms of the relevant tariff and the rules of court.
Nothing further was heard from the respondent.
This prompted the
applicant to send an enquiry on 8 August 2019 to Ms Nicole Stemmet at
the respondent’s offices; on the
same date, Ms Estelle Braaf
contacted the applicant to say that the matter would receive
attention during the following month.
[5]
A few days later, on 12
August 2019, Mr Edward Scheun of the Eastern Cape Department of
Education (‘the Department’)
also lodged a complaint
about the applicant’s conduct. In short, the complaint
pertained to NJDP’s alleged abuse of
court process and referred
to an affidavit deposed to by Mr Scheun in that regard. The applicant
contacted the respondent telephonically
upon receipt of the complaint
and indicated that he had not been provided with the affidavit in
question.
[6]
On 16 September 2019, the
applicant made a follow-up enquiry about the Squires complaint with
Ms Braaf, who responded on 30 September
2019 to say that the
respondent’s Investigating Committee would deal with the matter
on 1 October 2019. The applicant made
a further enquiry on the later
date but received no response.
[7]
Regarding the
Department’s complaint, the applicant informed Ms Braaf on 17
January 2020 that he had received Mr Scheun’s
affidavit but not
the annexures thereto. He also pointed out that it would be
prejudicial for him to address the complaint before
the finalization
of the underlying court proceedings. He received no response but
reached agreement with the Department on some
of the issues being
litigated.
[8]
Sometime later, on 5
October 2021, the applicant contacted the respondent’s Eastern
Cape office to point out that the Squires
complaint had been
outstanding for more than two years; he wished to have the matter
finalized. In response, Ms Louise Belcher
indicated to the applicant
on the same date that the Investigating Committee had dismissed the
complaint on 18 January 2021. The
applicant immediately requested the
respondent for a formal letter to that effect; he made further
requests on 11 October 2021
and 3 November 2021, whereupon he was
informed that the letter had been requested from the respondent’s
Western Cape office.
The applicant made another enquiry on 1 December
2021 and was told that the respondent would follow up and revert.
This never
happened.
[9]
Time passed and on 1
February 2022 the applicant enquired again; he was simply told that
he would receive the letter once it had
been obtained. The applicant
contacted the respondent a few weeks later, on 28 February 2022, but
there were no new developments.
[10]
On 13 January 2023, Mr
Siphamandla Ntshingila from the respondent’s Eastern Cape
office contacted the applicant, informing
him that the Investigating
Committee had considered the matter on 15 June 2022 and referred it
to the Disciplinary Committee on
31 January 2023. Caught completely
off guard, the applicant responded immediately and protested that the
Squires complaint had
already been dismissed. He contacted the
respondent again, a few days later, but to no avail.
[11]
The disciplinary
proceedings were convened for 31 January 2023. They were subsequently
postponed. The applicant conveyed his unhappiness
to the respondent
on 17 February 2023 and 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 (which Ms Belcher had communicated
to him) as points
in
limine
at
the proceedings scheduled for 27 February 2023. The proceedings were
further postponed until 29 March 2023, whereupon the Disciplinary
Committee dismissed the applicant’s points
in
limine
.
[12]
The applicant delivered
his outstanding response in relation to the Department’s
complaint on 18 May 2023. This was done in
anticipation of the
resumption of proceedings on 25 May 2023.
[13]
It is the applicant’s
case that the respondent’s conduct has been unfair; it did not
follow the correct procedure in
relation to his points
in
limine
and
it has unduly delayed the finalisation of the matter. The Squires
complaint, moreover, has already been dismissed.
Respondent’s
case
[14]
The chairperson of the
South African Legal Practice Council (‘national LPC’), Ms
Janine Myburgh, deposed to an answering
affidavit, pointing out that
the applicant had cited the Eastern Cape Provincial Council
(‘provincial LPC’) as the
respondent. It was, however,
the national LPC that retained authority to oppose an application of
this nature, which it proceeded
to do.
[15]
Ms Myburgh mentions that
both complaints were initially dealt with by the erstwhile Cape Law
Society. This was prior to the provincial
LPC’s having become
fully operational. Subsequently, the provincial LPC’s
Investigating Committee issued reports on
15 June 2022 and 16 August
2022, recommending that disciplinary proceedings be commenced.
[16]
A charge sheet was
delivered to the applicant on 16 January 2023. The applicant was, for
medical reasons, unable to attend the proceedings
at the end of the
month and the matter was rescheduled for 29 March 2023. Ms Myburgh
remarks that the complaints are of a serious
nature and pertain to
allegations of dishonest conduct on the applicant’s part. They
require the national LPC’s proper
attention.
[17]
The point is made that
the applicant sought to interdict the continuation of the
disciplinary proceedings on 25 and 26 May 2023.
The matter proceeded
anyway; Mrs Friderichs gave evidence and underwent cross-examination.
The proceedings were adjourned until
17 and 18 August 2023 for
finalization. Consequently, argues Ms Myburgh, the present review has
become moot. She goes on to address
the applicant’s founding
affidavit, pointing out that the applicant never received formal
confirmation to the effect that
the Squires complaint had been
dismissed because, factually, this was not the case.
[18]
No prejudice has been
caused to the applicant, asserts Ms Myburgh. The documentation that
informs the complaints are common cause
and ‘well preserved’.
Any delay that has occurred did not prevent the applicant from
defending himself at the disciplinary
proceedings. The decision of
the Disciplinary Committee in dismissing the points
in
limine
did
not, moreover, give rise to unfairness or any reviewable
irregularity.
Subsequent
developments
[19]
The applicant, in a
supplementary affidavit, records that he received notice to attend
the continuation of disciplinary proceedings
on 12 April 2024. This
was while the present review was still pending.
[20]
At the commencement of
the proceedings, the applicant raised, again, the issue of undue
delay as well as the alleged dismissal of
the Squires complaint. He
also raised concern that evidence had been introduced in the
Department’s complaint prior to any
charges having been
levelled against him and prior to his having pleaded thereto; he
pointed out, moreover, that he had since provided
his response to the
Department’s complaint and that the matter should, accordingly,
be referred to the Investigating Committee
for further consideration.
The Disciplinary Committee, avers the applicant, acknowledged receipt
of his response and removed the
Department’s complaint from the
proceedings on the day in question.
[21]
The respondent
subsequently filed the affidavit of Mr Pieter van Zyl, who has been
appointed to prosecute the disciplinary proceedings
against the
applicant. He explains that the applicant requested a postponement of
the proceedings that had been adjourned until
17 and 18 August 2023.
This was done. The proceedings were rescheduled for 12 April 2024, on
which date the applicant gave evidence
and was cross-examined. No
further evidence is to be led regarding the Squires complaint; the
parties are only required to submit
heads of argument, after which
the Disciplinary Committee will make its ruling.
[22]
Mr van Zyl goes on to
state that, in relation to the Department’s complaint, there
was insufficient time to have dealt with
the matter on 12 April 2024.
It has not been referred to the Investigating Committee. It remains
with the Disciplinary Committee
and disciplinary proceedings in that
regard will resume in due course, on a date still to be determined.
Issues
to be decided
[23]
From the papers filed,
the court must determine,
inter
alia
,
whether the applicant has established a basis upon which: (a) the
Disciplinary Committee’s ruling on the applicant’s
points
in
limine
can
be reviewed and set aside; (b) the respondent can be interdicted from
continuing with the disciplinary proceedings regarding
the Squires
complaint, pending the above review; and (c) the respondent can be
directed to refer the Department’s complaint
and the
applicant’s response to the Investigating Committee before
further steps are taken.
[24]
The relevant principles
are considered below.
Legal
framework
[25]
The Legal Practice Act 28
of 2014 (‘the LPA’) provides for the establishment of
investigating and disciplinary committees.
[1]
It requires the national LPC to make rules for dealing with
misconduct complaints
[2]
and
sets out the principles upon which a disciplinary hearing must be
conducted.
[3]
The LPA requires a
disciplinary committee to decide the guilt or otherwise of a legal
practitioner within 30 days after the conclusion
of disciplinary
proceedings, but does not stipulate a timeframe for the overall
investigation and adjudication of a matter.
[4]
A legal practitioner may appeal against a finding of misconduct or
against the sanction imposed, or both.
[5]
No provision is made, however, for an appeal against the conduct of
an investigating or disciplinary committee.
[6]
The LPA makes it clear, nevertheless, that a practitioner may apply
to the High Court for appropriate relief ‘in connection
with
any decision of a disciplinary body.
[7]
[26]
The rules
[8]
made in terms of the LPA deal with disciplinary matters under Part X.
They broadly reflect the principles contained in the LPA;
similarly,
they do not provide recourse for a practitioner in relation to the
conduct of either the investigating or disciplinary
committee.
[27]
The Supreme Court of
Appeal confirmed, in
Mapholisa
NO v Phetoe NO and others
,
[9]
that the decision-making of a statutory disciplinary body amounts to
administrative action. This is subject to review under section
6(1)
of the Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’),
the grounds for review being listed in section
6(2) thereof. The
applicant has not referred specifically to any of the PAJA review
grounds. He has argued, however, that undue
delay in the institution
and finalization of disciplinary proceedings against him has rendered
them unfair.
[28]
The subject of undue
delay was considered in
Sanderson
v Attorney-General, Eastern Cape
,
[10]
where the Constitutional Court dealt with the alleged infringement of
the appellant’s right to a speedy trial. Kriegler J
observed
that:
‘
The critical
question is how we determine whether a particular lapse of time is
reasonable. The seminal answer in
Barker
v Wingo
[11]
is that there is a “balancing test” in which the conduct
of both the prosecution and the accused are weighed and the
following
considerations examined: the length of the delay; the reason the
government assigns to justify the delay; the accused’s
assertion of his right to a speedy trial; and prejudice to the
accused.’
[12]
[29]
The context of the above
case was the prosecution of criminal proceedings, with reference to
the right to a speedy trial in terms
of section 25(3)(a) of the
Interim Constitution.
[30]
In
Bothma
v Els and others
,
[13]
the Constitutional Court dealt with a delay in the appellant’s
institution of a private prosecution for a series of rapes
that
allegedly occurred 37 years previously. Sachs J held as follows:
‘
The question
before us, then, is not with his [the respondent’s] rights
under section 35(3)(d) have been violated;
[14]
clearly they have not been. It is whether in a broader sense his
right to a fair trial would be irreparably violated as a consequence
of the extreme belatedness of the prosecution. In this respect I
believe that the High Court correctly decided that the right to
a
fair trial should not be anchored exclusively in section 35(3)(d). As
Kentridge AJ said in
S
v Zuma
:
[15]
“
The right to a
fair trial conferred by [the fair trial provisions of the Interim
Constitution] is broader than the list of specific
rights set out in
[the paragraphs dealing with the rights of the accused]. It embraces
a concept of substantive fairness which
is not to be equated with
what might have passed muster in our criminal courts before the
Constitution came into force.”
[16]
In this context, then,
the delay in the present matter must be evaluated not as the
foundation of a right to be tried without unreasonable
delay, but as
an element in determining whether, in all the circumstances, the
delay would inevitably and irremediably taint the
overall substantive
fairness of the trial if it were to commence.’
[17]
[31]
The above decisions
pertain to the prosecution of criminal proceedings. They have,
nevertheless, been referred to within the context
of disciplinary
proceedings emanating from an employment relationship.
[32]
In
Moroenyane
v Station Commander of the South African Police Services,
Vanderbijlpark
,
[18]
Snyman AJ considered an urgent application to interdict disciplinary
proceedings brought by the applicant’s employer, the
South
African Police Services (‘SAPS’). The alleged misconduct
occurred in 2014; the disciplinary proceedings were
instituted in
2016. Snyman AJ sought guidance from the principles of a stay in
criminal proceedings to decide whether undue delay
could render the
institution or continuation of such disciplinary proceedings as
unreasonable and unfair.
[19]
[33]
The learned judge
observed as follows:
‘
In summary, I do
not believe that what may be considered to be a lengthy delay in the
institution, and then conclusion, of disciplinary
proceedings can per
se lead to a conclusion of unreasonableness and unfairness. A
disciplinary hearing cannot be directed to be
aborted just because
there is a long delay. More is needed. What must always be
considered, in deciding whether to finish off disciplinary
proceedings because of an undue delay, is the following:
…
The delay has to
be unreasonable. In this context, firstly, the length of the delay is
important. The longer the delay, the more
likely it is that it would
be unreasonable.
…
The explanation
for the delay must be considered. In this respect, the employer must
provide an explanation that can reasonably
serve to excuse the delay.
A delay that is inexcusable would normally lead to a conclusion of
unreasonableness.
…
It must also be
considered whether the employee has taken steps in the course of the
process to assert his or her right to a speedy
process. In other
words, it would be a factor for consideration if the employee himself
or herself stood by and did nothing.
…
Did the delay
cause material prejudice to the employee? Establishing the
materiality of the prejudice includes an assessment as
to what impact
the delay has on the ability of the employee to conduct a proper
case.
…
The nature of the
alleged offence must be taken into account. The offence may be such
that there is a particular imperative to have
it decided on the
merits. This requirement however does not mean that a very serious
offence (such as a dishonesty offence) must
be dealt with, no matter
what, just because it is so serious. What it means is that the nature
of the offence could in itself justify
a longer period of further
investigation, or a longer period in collating and preparing proper
evidence, thus causing a delay that
is understandable.
…
All the above
considerations must be applied, not individually, but
holistically.’
[20]
[34]
The Constitutional Court
subsequently endorsed the approach in
Stokwe
v Member of the Executive Council: Department of Education, Eastern
Cape and others
.
[21]
In that matter, the court considered a situation where the
Department, as employer, dismissed the appellant more than five years
after the alleged misconduct. Petse AJ stated that the requirement of
promptness extended not only to the institution of disciplinary
proceedings but also to their expeditious completion.
[22]
The learned judge went on to refer to
Bothma
and held as follows:
‘
This [i.e. the
decision in
Bothma
]
also accords with the general principles how delay impacts the
fairness of disciplinary proceedings. The question whether a delay
in
finalisation of disciplinary proceedings is unacceptable is a matter
that can be determined on a case-by-case basis. There can
be no hard
and fast rules. Whether the delay would impact negatively on the
fairness of disciplinary proceedings would this depend
on the facts
of each case.’
[23]
[35]
The recent case of
Mapyane
v South African Police Services and others
,
[24]
decided in the Labour Court, reflects the continued application of
the above principles to an employment relationship. To that
effect,
Nkutha-Nkontwana J had regard to the institution of disciplinary
proceedings some three-and-half years after SAPS became
aware of the
misconduct allegations. The learned judge found that the undue delay
tainted the fairness of the proceedings; the
dismissal of the
applicant was vitiated by a gross irregularity, as envisaged under
section 145(2)(a)(ii)
of the
Labour Relations Act 66 of 1995
.
[25]
[36]
The distinction between
the above cases and the present matter is, of course, that the
disciplinary proceedings have been instituted
against the applicant
as a legal practitioner in terms of the LPA. The present matter does
not pertain to an employment relationship.
[37]
In
Heidema
v Professional Conduct Committee for Optometry and Dispensing
Opticians of the Health Professions Council of South Africa
and
others
,
[26]
Davis J was prepared to apply the principles of undue delay to the
disciplinary proceedings of the respondent, being a professional
body
established to regulate the optometry profession. The findings are
persuasive.
Discussion
[38]
There are several
arguments to be considered before the main issues can be decided.
These are addressed separately below.
Whether
the court can intervene, pending finalization of the proceedings
[39]
At the outset, it is
necessary to recognize the fact that the disciplinary proceedings
against the applicant have not been finalized.
The applicant has
merely challenged the Disciplinary Committee’s ruling of 29
March 2023 on the points raised
in
limine
.
[40]
Counsel for the
respondent referred to
Dr
Grieve v The Health Professions Council of SA
,
[27]
where Khumalo J reiterated the general principle that, absent
exceptional circumstances or a contravention of the requirements
of
procedural fairness, a court will not intervene in an administrative
process that has yet to be concluded.
[28]
The reasons for this are not difficult to find. Intervention by the
court risks further delay, added expenses, and might be unnecessary
where the administrator has yet to decide entirely unrelated issues
that could ultimately prove decisive of the matter.
[41]
The applicant’s
case, in the present matter, rests on the delay that has occurred and
the prejudice that has resulted. Whether
these constitute exceptional
circumstances that justify the court’s intervention,
notwithstanding the fact that the proceedings
have not been
finalized, must be decided after examining the delay itself and its
consequences. This must be done within the context
of PAJA.
Undue
delay as the basis for a possible ground of review
[42]
The application has been
brought in terms of the authority granted under
section 6(1)
of PAJA,
in accordance with the procedure contained in rule 53 of the Uniform
Rules of Court. As counsel for the respondent contended,
however, the
applicant has failed to identify the review grounds listed under
section 6(2) upon which he relies. In
Heidema
,
Davis J observed:
‘…
the
applicant, having launched review proceedings in terms of Rule
53,
[29]
is restricted to the
principles applicable to a judicial review of an administrative act.
These principles are those codified in
PAJA.’
[30]
[43]
The exact principles upon
which the applicant relies are not readily apparent. It is certainly
not the role of the court to second-guess,
from the affidavits and
argument presented, what forms the basis of the applicant’s
challenge. This must be conveyed clearly
and unequivocally, not only
for the benefit of the court but also for that of the respondent, who
has been called to answer the
applicant’s case.
[44]
Nevertheless, it seems
that the applicant has sought to assert that the delay and the
resulting prejudice, as alleged, have given
rise to an irregularity,
which possibly forms the basis for a ground of review upon which he
can launch an attack against the ruling
of the Disciplinary
Committee. He has averred that the proceedings have been rendered
unreasonable and unfair by the delay but
has stopped short of
explaining how such an irregularity relates specifically to the
grounds listed under section 6(2) of PAJA.
At best for the applicant,
it could be said that any of the grounds of procedural
unfairness,
[31]
irrationality,
[32]
or
unreasonableness
[33]
might
serve as the basis for the applicant’s challenge. The question
of delay can possibly be examined through such a lens.
Nature
and impact of the delay on the proceedings
[45]
At this stage, it is
necessary to examine in greater detail the nature of the delay to
which the applicant objects. Whether it has
rendered the proceedings
unreasonable and unfair can be decided within the framework set out
in
Moroenyane
,
subsequently endorsed in
Stokwe
.
Ultimately, the facts of the case must determine whether the delay
gave rise to a ground of review upon which the Disciplinary
Committee’s ruling can be challenged.
[46]
Beginning firstly with
the Squires complaint, the applicant can hardly be criticized for not
having taken adequate steps to attempt
to have the matter resolved.
There is undisputed evidence in his papers of the correspondence sent
to the respondent’s Western
Cape and Eastern Cape offices,
enquiring about the status of the matter and requesting that its
conclusion be expedited. The respondent,
in return, provided vague
assurances that the matter was receiving attention, as well as
several apologies for the ongoing delay.
At some point, an
administrator in the Eastern Cape office, Ms Belcher, informed the
applicant that the complaint had been dismissed,
only to be
contradicted more than a year later by another administrator, Mr
Ntshingila, who pointed out that the Investigating
Committee had
already referred it to the Disciplinary Committee for a hearing.
[47]
The complaint was lodged
on 25 February 2019; the disciplinary proceedings commenced on 31
January 2023. This represents a period
of almost four years.
[34]
The closest that the respondent 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 respondent’s inaction.
[48]
It remains to be decided,
however, whether such undue delay rendered the proceedings
unreasonable and unfair and, by implication,
whether the ruling of
the Disciplinary Committee is reviewable.
[49]
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. He (or his
legal representative) has been able to cross-examine Ms Friderichs
and to testify on his own behalf. He
has had full access to the
record and has never challenged, with much conviction, Ms Myburgh’s
assertion that ‘all
the documents relating to the complaint
seem to be common cause and well preserved by the parties.’
[35]
If the delay had indeed been as severe as alleged, then the question
arises as to why the applicant permitted the proceedings to
advance
as far as they have, with only the parties’ respective heads of
argument being outstanding.
[50]
The serious nature of the
complaint, too, cannot be overlooked. Where allegations of dishonesty
have been made against a legal practitioner,
these must be
investigated thoroughly; if an investigation reveals
prima
facie
evidence
thereof, then they must be tested properly at a hearing. A certain
measure of delay in this regard ought to be tolerated.
[51]
With reference to the
principles emphasised in
Sanderson
and later cases, a
balancing test must be applied. 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 respondent 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.
[52]
The same balancing test
must be applied to the Department’s complaint. Although the
complaint was lodged on 12 August 2019,
the applicant’s case
appears to be weakened somewhat by his letter to the respondent’s
Western Cape office, on 17 January
2020, to the effect that ‘we
believe that to answer this complaint will be prejudicial at this
stage and that the matter
[i.e. the underlying High Court litigation]
should be finalized first.’ There was no further communication
between the parties
until the respondent’s notification, on 13
January 2023, of the commencement of proceedings. At least some of
the three-year
delay can be attributed to the applicant’s
stance that an answer to the complaint, pending completion of the
underlying High
Court litigation, would be premature and not in his
interests. There is no suggestion from the papers that the applicant
took any
further steps to deal specifically with the Department’s
complaint.
[53]
Insofar as the applicant
never received a copy of the annexures to Mr Scheun’s
affidavit, this had more to do with the fairness
of the proceedings
themselves rather than the delay; the applicant subsequently obtained
the outstanding documents and provided
an answer to the complaint.
The demise of a potential witness in the proceedings, Mr Sean
Coetzee, might well have compromised
the applicant’s case.
[36]
His passing, however, on 26 December 2023, was almost a year after
the date upon which the hearing commenced; there is no indication
that there was any connection between the prejudice caused by Mr
Coetzee’s death and the delay from when the complaint was
first
lodged. It takes the matter no further.
[54]
Similarly, when all the
factors pertinent to the Department’s complaint are considered
holistically, any undue delay has not,
to use the language of
Bothma
,
inevitably and irremediably tainted the overall substantive fairness
of the proceedings were they to continue. That threshold
has simply
not been crossed.
[55]
In the absence of a
finding that the proceedings have been rendered unreasonable and
unfair by the undue delay, there is no need
to investigate further
whether any of the review grounds of procedural unfairness,
irrationality, or unreasonableness as listed
under section 6(2) of
PAJA, can be invoked. The applicant’s challenge to the
Disciplinary Committee’s ruling is unsuccessful.
Distinction
between appeal and review procedures
[56]
The discussion, at this
stage, must move away from the nature and impact of the undue delay
on the proceedings to examine whether
there is any basis for the
applicant’s remaining arguments. This invites the question of
whether such arguments form the
basis for an appeal against the
Disciplinary Committee’s ruling, rather than a review.
[57]
It is important to
reiterate the distinction between the two procedures. Counsel for the
respondent referred to Hoexter’s
work, where the learned writer
observes:
‘
Like judicial
review, administrative appeals allow for the reconsideration of
administrative decisions by a higher authority. Unlike
judicial
review, such appeals are established specifically to challenge the
merits of a particular decision. The person or body
to whom the
appeal is made will step into the shoes of the original
decision-maker, as it were, and decide the matter anew.
Judicial review, on the
other hand, focuses on the way in which the decision was reached, and
not on the correctness of the decision
itself. At least in theory,
review tests the legality and not the merits of the decision. Another
major distinction is that judicial
review is an external safeguard
against maladministration, whereas administrative appeals constitute
an internal or “domestic”
check.’
[37]
[58]
A key contention advanced
by the applicant is that the respondent previously dismissed the
Squires complaint. This was conveyed
to the applicant on 5 October
2021 by an administrator of the respondent, Ms Belcher. Consequently,
suggests the applicant, the
complaint could not have been revived and
made the subject of the ensuing proceedings.
[59]
The respondent points out
that, factually, the complaint was never dismissed; the Investigating
Committee never made any decision
to that effect. In its ruling, the
Disciplinary Committee referred to rule 40.5.2 of the LPC Rules,
[38]
in terms of which the Investigating Committee must inform the LPC,
the complainant, and the practitioner concerned (i.e. the applicant
in this case) of any decision to dismiss a complaint, as well as the
reasons for it. This was never done. The email from Ms Belcher
could
never have been construed as official communication from the
Investigating Committee, as envisaged under rule 40.5.2. The
applicant’s subsequent insistence on the respondent’s
provision of a formal letter in confirmation of the above served
merely to underscore his acceptance that the email was, on its own,
insufficient.
[60]
In advancing the above
argument for purposes of the present matter, the applicant has not
challenged the way in which the Disciplinary
Committee reached its
decision on 29 March 2023. He has, however, challenged the
correctness thereof. The applicant’s heads
of argument confirm
as much when the assertion is made, in their conclusion, that ‘on
the basis of all the aforesaid…
the respondent erred in its
finding on the points raised
in
limine
and
ought to have upheld same.’ This is, without a doubt, an appeal
mistakenly dressed as a review. The provisions of section
41(1)(a) of
the LPA, read with rule 44, provide the appropriate recourse for the
applicant.
[39]
[61]
The argument also
attracts the problems associated with section 7(2) of PAJA. The
provisions in question prevent a court from reviewing
administrative
action unless an internal remedy, as provided for in any other law,
has first been exhausted.
[40]
The LPA’s appeal procedure is just such a remedy. The court
cannot, in the absence of exceptional circumstances and without
application having been made, exempt the applicant from his
obligation in this regard.
[41]
[62]
By extension, it also
follows that the applicant’s challenge to the Disciplinary
Committee’s ruling, overall, can be
rejected simply because it
does not amount to a proper review. The applicant has sought the
review and setting aside of the ruling,
resting his case on undue
delay and the resulting prejudice. He has, however, attached such
shortcomings to the proceedings rather
than the ruling itself; he has
not argued that undue delay and the resulting prejudice have affected
the way in which the Disciplinary
Committee reached its decision or
the legality thereof. He has challenged the merits of the ruling. The
applicant has effectively
brought an appeal; no case has been made
for the review and setting aside of the ruling.
Referral
of Department’s complaint
[63]
The remaining issue for
determination is whether to refer the Department’s complaint
and the applicant’s answer to the
Investigating Committee. The
reason advanced for this is that until the Investigating Committee
has properly investigated the matter,
has satisfied itself on the
basis of available
prima
facie
evidence
that the applicant is guilty of misconduct, and has referred the
matter to the Disciplinary Committee, any attempt by the
Disciplinary
Committee to continue with the hearing would be in contravention of
the LPC Rules.
[42]
[64]
The difficulty with the
applicant’s contention is that the Department’s complaint
has already been investigated by the
Investigating Committee. It
issued its report on 16 August 2022 and referred the matter to the
Disciplinary Committee for adjudication,
resulting in the charges
brought against the applicant on 16 January 2023. There was, as
counsel argued, no obligation on the part
of the respondent to have
invited a response from the applicant prior to the referral of the
matter to either the Investigating
Committee or the Disciplinary
Committee.
[43]
It did so,
nonetheless. The applicant, in turn, elected not to answer the
complaint.
[65]
The role of an
investigating committee is to investigate a complaint so that it can
determine whether the practitioner in question
is, based on the
available
prima
facie
evidence,
guilty of misconduct that warrants disciplinary proceedings.
[44]
The role of the disciplinary committee is to adjudicate the matter
and to decide whether the practitioner is guilty of misconduct.
[45]
[66]
In the present matter,
once the Investigating Committee had referred the Department’s
complaint to the Disciplinary Committee,
it had performed its
function. There was and remains no need to refer the matter back to
it for further consideration. That the
Disciplinary Committee invited
the applicant to answer the complaint was, as was pointed out in the
ruling made on 29 March 2023,
a procedure that fell within the ambit
of the discretionary powers available to the chairperson in terms of
rule 41.8.10
[46]
and served to
give effect to the principle of
audi
alterem partem
.
It is not inconceivable that the applicant could have admitted the
charges
in
toto
;
alternatively, he could have placed such information before the
Disciplinary Committee as to have persuaded it that he was entirely
innocent of the misconduct with which he had been charged. In either
event, it would have been within the powers of the Disciplinary
Committee to have determined, through its chairperson, the way in
which the proceedings would have been conducted further.
[47]
[67]
To refer the Department’s
complaint back to the Investigating Committee, at this stage, would
serve no purpose at all. It
would merely exacerbate the delay that
lies at the heart of the applicant’s case.
Relief
and order
[68]
On the facts of this
matter, the applicant has not demonstrated that undue delay in either
the Squires complaint or the Department’s
complaint has
rendered the proceedings unreasonable or unfair, such that the ruling
of the Disciplinary Committee is reviewable.
Such delay, moreover,
has not given rise to a set of exceptional circumstances that justify
the court’s intervention when
the proceedings have yet to be
concluded. It is also clear that the applicant has misconstrued the
recourse available to him, inadvertently
framing his application as a
review of the decision of the Disciplinary Committee on 29 March
2023, instead of pursuing an appeal
procedure once it becomes
available to him.
[48]
[69]
Consequently, there is no
basis for reviewing and setting aside the Disciplinary Committee’s
ruling. There is also no basis
for interdicting the proceedings
pertaining to the Squires complaint
[49]
or for referring the Department’s complaint back to the
Investigating Committee.
[70]
Regarding costs, the
general rule must be applied; the respondent as the successful party
is entitled to recover its expenses. To
that effect, however, it is
unnecessary to make an award on an attorney-and-client scale, as
requested by counsel for the respondent.
As the court has already
found, the respondent was chiefly responsible for the undue delay in
the Squires complaint; it was also
not entirely blameless for the
delay in the Department’s complaint. It would be unfair to
impose a punitive costs order on
the applicant.
[71]
In the circumstances, the
following order is made:
(a)
the
application is dismissed; and
(b)
the
applicant is directed to pay the respondent’s costs on a
party-and-party basis.
JGA
LAING
JUDGE
OF THE HIGH COURT
Appearances
For
the applicant:
Adv
Conjwa
NJ Du
Plessis & Associates Incorporated
18
Ajax Cresent
Chiselhurst
EAST
LONDON
Tel:
071 335 8610
Instructed
by:
Ref:
NICO DU PLESSIS
For
the respondent:
Adv
Watt
Instructed
by:
Drake
Flemmer & Orsmond (EL) Inc.
Quenera
Office Park
12
Quenera Drive
Beacon
Bay
EAST
LONDON
Tel:
043 722 4210
Email:
angus@drakefo.co.za
(Ref:
AJ PRINGLE/th/MAT58656/L306(B)
Date
of hearing:
18
April 2024.
Date
of delivery of judgment:
20
August 2024.
[1]
Sections
37(1) and (4).
[2]
Section
38(1).
[3]
Section
39.
[4]
Section
40(1)(a).
[5]
Section
41(1)(a).
[6]
Interestingly,
section 41(1)(b) permits a complainant to lodge an appeal against
any conduct or finding of the committees in question.
[7]
Section
44(2).
[8]
The
LPC Rules were published in terms of GN 401 of 20 July 2018, GG No.
41781.
[9]
2023
(3) SA 149
(SCA), at paragraph [14].
[10]
1998
(2) SA 38 (CC).
[11]
The reference is to a decision of the United States Supreme Court,
viz.
Barker
v Wingo, Warden
[1972]
USSC 144; 407 US 514.
[12]
Sanderson
,
at paragraph [25].
[13]
2010
(2) SA 622 (CC).
[14]
The
reference is to section 35(3)(d) of the Constitution, within the
context of the overarching right to a fair trial, that every
person
has the right to have his or her trial begin and conclude without
unreasonable delay.
[15]
[1995] ZACC 1
;
1995
(2) SA 642
(CC).
[16]
At
paragraph [16].
[17]
Bothma
,
at paragraph [34].
[18]
(J1672/2016)
[2016] ZALCJHB 330 (26 August 2016).
[19]
At
paragraph [38].
[20]
At
paragraph [42].
[21]
2019
(4) BCLR 506 (CC).
[22]
At
paragraph [67].
[23]
At
paragraph [71].
[24]
(JR
1948/19) [2023] ZALCJHB 344.
[25]
At
paragraphs [28] to [30].
[26]
2022
JDR 3835 (GP).
[27]
2019
JDR 0352 (GP).
[28]
At
paragraph [48]. The court referred to the Canadian decision of
Northern
Cross (Yukon) Limited v Canada
(Attorney
General /
2017 FC 622
,
2017 CarswellNat 2962b).
In relation to the
intervention of a superior court in Magistrates’ Court
proceedings that had not yet been terminated,
see
Wahlhaus
and others v Additional Magistrate, Johannesburg and another
1959
(3) SA 113
(A), at 119D-120D; and
Goncalves
v Addisionele Landdros, Pretoria en ‘n ander
1973
(4) SA 587
(T), at 596h.
[29]
Rule
53 of the Uniform Rules of Court.
[30]
Heidema
,
n 26, above, at paragraph [26].
[31]
Section
6(2)(c) of PAJA.
[32]
Section
6(2)(f)(ii).
[33]
Section
6(2)(h).
[34]
The
period after the commencement of the proceedings has not been
considered. Ms Myburgh’s contention that the applicant
sought
a postponement of the proceedings until 29 March 2023 has not been
refuted; after this, the proceedings seem to have followed
a
standard course within a reasonable timeframe.
[35]
The
quotation is derived from the Disciplinary Committee’s ruling,
per the chairperson, Mr Ayanda Gwabeni, at paragraph
9, 29 March
2023.
[36]
The
Department alleged that the applicants’ clients never had
their affidavits properly commissioned. Mr Coetzee was the
commissioner of oaths involved.
[37]
C
Hoexter and G Penfold,
Administrative
Law in South Africa
(Juta,
3ed, 2021), at 85.
[38]
See
n 8, above.
[39]
Rule
44 of the LPC Rules sets out the procedure to be followed for an
appeal against the conduct or finding of an investigating
committee
or a disciplinary committee. The provisions thereof can be
interpreted to mean, however, that the applicant must await
the
finalization of the proceedings before lodging it with the appeal
tribunal.
[40]
Section
7(2)(a).
[41]
Section
7(2)(c).
[42]
Rule
40.5.1 addresses the procedure to be followed.
[43]
Counsel
referred to the discretion created under rule 39.3 and rule 40.2 in
relation to whether to invite the practitioner in
question (i.e. the
applicant) to answer the complaint, provide further particulars, or
assist in the formulation of recommendations
to the LPC.
[44]
See
rule 40.1 and rule 40.5.
[45]
See
rule 40.5.1 and 43.1.
[46]
The
rule provides that a disciplinary committee has the power, where any
matter of procedure arises for which no provision is
made in the LPC
Rules, to determine through its chairperson, at his or her
discretion, what procedure should be followed.
[47]
See rule 41.8.1.
[48]
See
n 39, above.
[49]
Counsel
for the respondent contended that the issue has become moot because
the proceedings went ahead on 25 and 26 May 2023.
During argument,
counsel for the applicant applied, from the bar, for an amendment of
the relief sought, such that all further
proceedings in relation to
the Squires complaint would be interdicted.