IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: 15857/2023
In the matter between:
SOUTH AFRICAN LEGAL PRACTICE COUNCIL Applicant
And
LYNN SWART Z Respondent
Heard: 25 November 2024
Delivered electronically: 21 February 2025
__________________________________________________________________
JUDGMENT
__________________________________________________________________
LEKHULENI J (SHER J concurring):
Introduction
[1] This is an application in which the South African Legal Practice Council (‘the
LPC’) seeks an order that the respondent be struck , alternatively suspend ed, from
the roll of legal practitioners of the Western Cape Division of the High Court of South
Africa in terms of section 40(3)(a)(iv) read with section 44(1) of the Legal Practice
Act 28 of 2014 (‘the LPA’) . The main issue giving rise to this application (“the
offending conduct”) stems from the respondent having allowed a delictual claim of
Ms LD (‘the complainant’) against the South African Police Services (“SAPS ”) and
the Minister of Police for damages to become prescribe d. The respondent failed to
issue summons timeously. In a dishonest attempt to conceal her error from the
complainant, the respondent informed the complainant that her claim was settled
and inquired from the complainant about the amount she would be prepared to
accept to settle the matter.
[2] In response, t he complainant informed the respondent that she would be
prepared to settle the matter for an amount of R350,000. The respondent thereafter
proceeded to pay this amount to the complainant out of her own pocket in
instalments. The respondent was thereafter evasive with the complainant and was,
for obvious reasons, not able to provide her with documentation relat ing to the
settlement . Subsequent thereto, the complainant reported the matter to the LPC. T he
Investigating Committee and the Disciplinary Committee of the LPC found the
respondent guilty of the offending conduct and imposed a monetary sanction i.e. a
fine of R12 000 which was subsequently increased to R 45 000 and a
recommendation that the resp ondent be suspended from practice, which in turn was
to be suspended.
[3] Discontented with the sanction imposed by the two committees, the LPC
approached this court for an order to strike the respondent from the roll of legal
practitioners of this divis ion, alternatively for an order suspending the respondent
from practice. The LPC's case is that the respondent is not a fit and proper person to
practice as a legal practitioner and that the offending conduct warrants a strike off,
alternatively, a suspens ion from the roll of legal practitioners of this division. The
respondent admitted that she had committed the offending misconduct but
respectfully submitted that it does not warrant a striking off from the roll. This Court
must now consider whether the re spondent's dishonest misconduct is egregious
enough to warrant a strike -off or whether it merits a suspension only, as prayed for
by the applicant in the notice of motion.
Factual Background
[4] The respondent was admitted as an attorney of the Western Cape Division of
the High Court of South Africa on 3 June 2005 and has practised as such in the
Western Cape Province. On 02 April 2021, the complainant addressed an email to
the LPC to lodge a comp laint of unprofessional conduct against the respondent. The
relevant facts which gave rise to the complaint are that on 13 May 2010, members of
SAPS conducted a raid on the complainant's property in search of illegal narcotics .
At the time of the SAPS raid at the complainant's property, her eleven -year-old
daughter was alone at home. The complainant's daughter could not find the key to
open the door, and the SAPS members removed the front gate and door to gain
access to the property.
[5] According to the complainant, two to three female SAPS members undressed
her daughter while the room doors were open and patted her down searching for
possible narcotic s. The complainant alleged that the SAPS members asked her
daughter to spread her legs so that they could pat her down. The complainant and
her husband arrived then, but the SAPS members denied them entry into the house.
When the complainant eventually entered the house, she demanded to see a search
warrant from SAPS. A piece of paper was handed to the compla inant but was
immediately taken back by the SAPS members before the complainant could read it.
The complainant protested the way the SAPS members conducted the raid and the
way her then eleven -year-old daughter was treated by members of SAPS. The
complaina nt was thereafter placed into a police van and taken to Manenberg Police
Station, where she was later released upon payment of a fine of R100.
[6] On 22 September 2010, the complainant and her daughter attended a
consultation at Bardien & Higgins Attorne ys, where they consulted with the
respondent and Mr Higgins about instituting action proceedings against SAPS and
the Minister of Police for damages in respect of the incident that occurred on 1 3 May
2010 at the complainant’s property. On 25 September 2010, the complainant paid an
amount of R10,000 in the trust account of Bar dien & Higgins Attorneys, on the basis
that this firm of attorneys would represent her in the contemplated action against the
SAPS and th e Minister of Police.
[7] The complainant further asserted that some time then passed, during which
the respondent opted to practice for her own account and enquired whether she
could continue with the complainant's matter against the SAPS and the Minist er of
Police, to which the complainant agreed. According to the applicant's records, the
respondent began practising for her own account on or about 11 March 2014. The
complainant further stated that all the while, the respondent offered little to no
commu nication about the case against the SAPS and the Minister of Police, nor did
the respondent provide any paperwork.
[8] On 18 September 2018, the respondent notified the complainant that she had
settled the matter with SAPS and the Minister of Police for R350 000. In the following
months, the complainant received the following payments from the respondent.
8.1 On 15 November 2018 : R100 000
8.2 On 18 December 2018 : R100 000
8.3 On 30 January 2019 : R50 000
8.4 On 05 February 2019 : R40 000
8.5 On 11 June 2019 : R98 000.
[9] The complainant thus received a total sum of R388 000 f rom the respondent.
Despite numerous requests by the complainant , since September 2010, for copies of
the documents pertaining to her legal action against the SAPS and the Minister of
Police, the respondent failed to finish the complainant with same. In addition, the
complainant asserted that she did not sign or have sight of any written settlement
agreement between the parties to the action . Subseq uently, on 2 April 2021, the
complainant addressed an email to the LPC to lodge a complaint of, inter alia,
unprofessional conduct against the respondent.
[10] On 08 April 2021, the LPC addressed correspondence to the respondent to
inform her of the complaint lodged against her. On 10 May 2021, the respondent
addressed a letter in response to the LPC, wherein she confirmed that she was
handling the complainant's case against the SAPS and the Minister of Police. In her
correspondence, the respondent said that she had discovered that the complainant's
matter had prescribed in respect of issuing a summons against the SAPS and the
Minister of Police. She went into com plete panic. In an endeavour to correct her error
and not have the complainant suffer prejudice, she inquired from the complainant
what amount she (the complainant) would be prepared to accept to settle the matter.
In response, the complainant informed the respondent that she would be prepared to
settle the matter for R350 000. The respondent subsequently raised R350 000 and
effected payment in instalments to the complainant. The respondent admitted to
being evasive and not having documentation to present t o the complainant, as there
was nothing in her file save for a letter of demand.
[11] Subsequent thereto, on 17 May 2021 the LPC addressed a letter to the
respondent wherein the respondent was advised that the complaint against her
would be referred to t he LPC's Investigating Committee for adjudication. On 31
August 2021, the Investigating Committee of the LPC convened to adjudicate the
complainant's complaint against the respondent. Following the Investigating
Committee ’s adjudication , in November 2021, the committee requested the
respondent to provide reasons why she should not be charged with the following
contravention s:
11.1 Clause 3.11 of the C ode of Conduct of the LP A in that she failed to use
her best effort s to carry out work in a competent and timely manner by failing
to attend to the complainant ’s civil matter against the Minister of Police since
September 2018 timeously or at all ;
11.2 Clause 3.15 of the Code of Conduct of the LPA in that she brought the
legal profession into disrepute by allowing the civil claim against the Minister
of Police to prescribe; and
11.3 Clause 3.15 of the Code of Conduct of the LPA in that she brought the
legal profession into disrepute by failing to advise the complainant that the
civil claim against the Minister of Police had prescribed.
[12] On 31 January 2022, the LPC addressed correspondence to the respondent
to inform her of the directives issued by the Investigating Committee and requested
her response thereto. On 21 February 2022 the respondent replied to the LPC's
letter, explaining the circumstances surrounding the settlement she paid to the
complainant. In the correspondence, the respondent ostensibly admitted guilt to the
allegations against her.
[13] The Investigating Committee considered the respondent's correspondence.
On 3 March 2022, the LPC addressed a letter to the respondent informing her that
the Investigating Committee noted that the respondent intended to invoke the
provisions of Rule 40.4 of the LPC Rules in that she wished to plead guilty to the
contraventions of the vari ous clauses of the Code of Conduct as specified in
paragraph 11 above. The letter also directed that the respondent be requested to
advise whether she would consent to a globular fine of R12,000, half suspended for
two years on condition that she was not f ound guilty of misconduct during the period
of suspension, and a contribution to the costs of the committee of R3000.
[14] The Investigatin g Committee was of the view that the contraventions did not
warrant that the respondent’s name be struck from the r oll of legal practitioners , or
that she be suspended from practice , or that a curator bonis be appointed to her
practice. On 22 March 2022 , the respondent sent an email to the LPC indicating that
she accepted the proposal made by the Investigating Committe e. Indeed, the
respondent made payment of this fine on 3 March 2023. On 01 February 2023 , the
Director of the Western Cape Provincial Office of the LPC provided a memorandum
to the Disciplinary Oversight Committee (“the DOC”) of the LPC. The Memorandum
recommended that the recommendations of the Investigatin g Committee be
accepted.
[15] On 16 February 2023, the respondent's matter served before the DOC, a
subcommittee of the applicant. The DOC was not satisfied with the sanction imposed
by the Investigating Committee , given the serious allegations levelled against the
respondent. Instead, the DOC resolved that the matter be referred, in terms of Rule
40.5.1 of the LPC Rules, to a Disciplinary Committee ("the DC") for further
adjudication. On 1 M arch 2023, the DC charge sheet was sent to the respondent,
wherein she was called upon to appear in person before the DC to answer to
charges of misconduct in terms of clause 21 of the Code of Conduct . It was alleged
that she had contravened the following provisions of the Code :
15.1 Clause 3.11 in that she had failed to use her best efforts to carry out
work in a competent and timely manner , by failing to attend to the
complainant's civil matter against the Minister of Police; (count 1)
15.2 Clause 3.15 in that she brought the legal profession into disrepute by
allowing the complainant ’s civil matter to prescribe (count 2); and
15.3 Clause 3.15 i n that she brought the legal profession into disrepute by
failing to advi se the complainant that her civil matt er had prescribed (count 3).
[16] The DC convened on 15 March 2023 to further adjudicate the complaint. The
respondent appeared before the DC. At the hearing on 15 March 2023, the DC
added a fourth charge against the respondent namely , a contravention of clause 3.1
read with clause 3.3 of the Code of Conduct on the basis that the respondent had
failed to treat the interests of the complainant as paramount and failed to maintain
the requisite ethical standard s by actively lying to the comp lainant that she had
received a settlement offer , notwithstanding that there was no settlement agreement
in place. The respondent again pleaded guilty to all the charges, and the DC, after
considering the matter and having regard to the respondent's explan ation for her
conduct, considered the imposition of the following sanctions to be appropriate :
16.1 Count 1: A fine of R 15 000
16.2 Count 2: A fine of R15 000
16.3 Count 3: A fine of R15 000
16.4 Count 4: The respondent was to be suspended from practic e as an
attorney for a period of three years, wholly suspended on condition that she
was not found guilty of a similar offence, effective from 1 April 2023. In
addition, the DC recommended that the respondent be required to provide an
undertaking that she w ould not take on any candidate attorneys for a period of
three years effective from 1 April 2023 and should provide documentary
evidence that she was registered with Prescription Alert.
[17] In the interim, the respondent paid the full amount i.e. R45 000 of the fine
imposed by the DC and complied with all the other sanctions imposed upon her. The
findings of the DC were sent to the DOC for finalisation and approval. To this end, on
22 March 2 023, the Director of the Western Cape Office of the LPC addressed a
Memorandum to the DOC in terms of section 40(3)(iv) of the LPA, in which she
recorded the proceedings that occurred before the DC. The Memorandum
recommended that the DC's recommendation b e endorsed.
[18] However, the DOC disagreed with the DC's recommendation . It was of the
view that a fraud or misrepresentation was involved and that the sanction imposed
by the DC was consequently too light. The DOC believed that the respondent's
conduc t warranted more stringent sanctions than what the DC had recommended.
[19] At the LPC's second quarterly meeting on 8 July 2023, the LPC took note of
the DOC's minute dated 5 April 2023 rejecting the DC findings and resolved that in
terms of section 40(3)(a)(iv) of the LPA, the LPC should institute a High Court
application to strike the respondent's name from the roll of legal practitioners with the
proviso that th e court be informed of the sanction imposed by the DC. Indeed, on 26
September 2 024, the LPC instituted proceedings in this court and sought an order
striking off the respondent from the roll of legal practitioners, alternatively that she be
suspended from practice for a period of 3 years in terms of section 40(3)(a)(iv) read
with sec tion 44(1) of the LPA.
Principal Submissions by the parties
[20] In her written and oral submissions, Ms Mahomed, the applicant's counsel,
submitted that a practising legal practitioner is duty -bound to properly and honestly
represent her clients and t o act in the ir best interests and that the respondent had
failed to fulfil her duty in this regard. Ms Mahomed further asserted that the
respondent does not dispute that she is guilty of the offending conduct or the
outcome of the Investigating Committee a nd the DC proceedings . In her view, the
respondent's dishonest, unethical and unprofessional conduct show ed a lack of
integrity, judgment and insight and that she was not a fit and proper person to
practice as a legal practitioner. Ms Mohamed further submi tted that the offending
conduct reflect ed adversely on the respondent's character and militated for her
immediate striking from the roll of legal practitioners, alternatively for her suspension
from the roll of legal practitioners for a reasonable period.
[21] Ms Mahomed opined that the respondent’s conduct was demonstrably
prejudicial to the complainant, members of the public and the profession itself.
According to her, the respondent’s conduct could not be countenanced and must be
sanctioned accordingly . In light of the above, Ms Mohamed contended that the LPC
has made out a suitable case for the relief sought in the notice of motion .
[22] On the other hand, Mr Jacobs SC, the respondent's counsel, submitted that
the Investigating Committee, as well as the DC, did not advise the LPC that
proceedings should be instituted to strike the respondent's name from the roll of legal
practitioners. Mr Jacobs asserted that the memorandum of the DC which was
forwarded to the DOC recommended that the recommendations of the DC be
endorsed. According to Mr Jacobs, the DOC, as a representative of the LPC, was
not empowered to go beyond the sanction imposed by the DC. To this end, he relied
on section 40(8) o f the LPA and contended that the LPC had to give effect to the
advice and decision of a Disciplinary Committee.
[23] Mr Jacobs contended that section 40(3)(iv) of the LPA sets out the scope of
the recommendation that a DC can provide to the Council. For completeness, the
relevant section provides:
“If found guilty of misconduct, the disciplinary committee concerned may call
witnesses to give evidence in aggravation of sentence and may –
(iv) advise the Council to apply to the High Court for –
(aa) an order striking his or her name from the Roll;
(bb) an order suspending him or her from practice ;
(cc) an interdict prohibiting him or her from dealing with trust monies ;
or
(dd) any other appropriate re lief.”
[24] Mr Jacobs submitted that the LPC ha d a discretion to decide on a
recommendation made by the DC , if it included a recommendation to pursue any of
the remedial action s set out in section 40(3)(iv) of the LPA. Where the DC had not
suggested that any further action be taken, the LPC was obliged to give effect to the
decision of the DC , as was provided for in section 40(8) of the LPA. In the present
matter, so Mr Jacobs contended , the DOC, as the delegated authority of the LPC,
had not given effect to the advice and decision of the DC. For completeness section
40(8) provides as follows:
“The Council (LPC) must give effect to the advice and decision of a
disciplinary committee.” (M y emphasis added)
[25] It was Mr Jacobs' contention that the language of section 40(8) of the LPA is
peremptory and circumscribes the LPC's position in relation to the advice and
decision of a DC. In this regard, he submitted further that there was nothin g in the
LPA, or the Rules promulgated thereunder , that allowed the LPC not to give effect to
the decision of the DC. Simply put, Mr Jacobs submitted that the LPC was bound to
give effect to the decision of the DC.
[26] Regarding the offending conduct of the respondent, Mr Jacobs pointed out
that the respondent admitted her wrongdoing and ha d not attempted to delay the
disciplinary proceedings instituted against her. Furthermore, the respondent ha d paid
all the fines which were imposed on her and did not violate any sanction imposed on
her. Regarding the facts of the matter, he suggested that the case at hand reflect ed a
moral lapse by the respondent. To this end, Mr Jacobs implored the court to order ---
that the respondent be suspe nded from practising as an attorney but that such
suspension be suspended for a period as determined by the court.
Issues in dispute
[27] From the discussion above, there are two questions that this court must
decide . First, this court is enjoined to determine whether the decision of the DC, a
sub-committee of the LPC, is binding on the LPC. Expressed differently, whether the
LPC cannot devi ate from the recommendations made by the DC. Secondly, whether
the offending conduct the respondent committed is so egregious as to warrant
striking her from the roll of legal practitioners. Ancillary to the second question, the
court must determine whethe r the DC's suspension of the respondent is sufficient ,
given the gravity of the offending conduct the respondent committed.
Applicable legal principles and discussion
[28] For the purpose s of this judgment , I will discuss the issue s in dispute
discussed above, ad seriatim.
Whether the decision of the DC is binding on the LPC ?
[29] As discussed above, Mr Jacobs submitted that the DC did not advise the
LPC, as provided for in section 40(3)(iv) of the LPA , that proceedings to strike the
respondent's name from the roll of legal practitioners be instituted. He submitted that
where the DC suggested that further action be taken, the LPC had to give effect to
the advice and the d ecision of the DC , as provided in section 40(8) of the LPA. In
other words, the LPC was bound by the decision of the DC.
[30] In considering this issue , it is necessary to look at the schematic framework of
the LPA as well as its Rules and the Code of Co nduct. Section 40(8) of the LPA, as
previously quoted, must be interpreted in conjunction with other provisions of the
LPA rather than in isolation, as interpreting it without considering the broader context
of the LPA may result in absurd conclusions. I w ill return shortly to examine the
interpretation of this section in more detail. However, I must mention that the LPC
serves as the regulatory body for all legal practitioners in South Africa. The LPC is a
corporate body with full legal capacity and has ju risdiction over all legal practitioners
and candidate legal practitioners in the Republic of South Africa. Its mandate is to
implement the provisions of the LPA to achieve the objectives specified in Section 5
of the Act.1
[31] In the present matter, the LPC has taken the most crucial step of instituting
this application , to champion the integrity and dignity of the legal profession. As I see
it, this endeavour is aimed at ensuring that the public's interests are fully protected in
all interact ions with legal practitioners, thus fostering trust and confidence in the legal
profession. As a corporate body that is enjoined to facilitate the realisation of the
goals of a transformed legal profession that is accountable, efficient and
independent, th e LPC, in my view, is surely not bound by the decision of its
subcommittees. Its subcommittees are subordinate to it. For the reasons that follow,
in my view, i n exercising its jurisdiction, the LPC may decline to accept and may vary
or jettison any decisi on or advice of its subcommittees if such advice or decision , in
the opinion of the LPC, would compromise the integrity and dignity of the legal
profession , or would not be in the best interests of the profession and/or the public
which it is meant to serv e.
[32] A committee of the LPC is sub servient to the LPC , which serves as the body
regulating the conduct of its members, under the ultimate control and supervision of
the courts . Accordingly, as a regulatory, custodian organisation it should be at liber ty
to approac h the court to express its concerns regarding a recommendation made by
its committee for either striking off or suspending a member. In my view, it is crucial
for the dignity and integrity of the legal profession that the LPC has the freedom t o
express its concerns and have the conduct of its members tested in court in case of
doubt and uncertainty . As it is only the High Court which can strike an errant
practitioner from the roll, the LPC is obliged to approach it for the consideration and
grant of such an order. I now turn to interpreting section 40(8) of the LPA.
1 Section 5 sets out the objects of the Council. Amongst others, section 5 provides that the objects of
the Council are to promote and protect the public interest; to regulate all legal practitioners and all
candidate legal practitioners; and to enhance and maintain the integrity and status of the legal
profession.
A purposive interpretation of Section 40(8) of the LPA
[33] As previously stated, section 40(8) of the LP A provides that the Council must
give effect to the advice and decision of a DC. The objectives of the LPA are
stipulated in section 3 of the Act. Among others, the LPA aims to provide a legislative
framework for transforming and restructuring the legal pro fession that embraces the
values underpinning the Constitution and ensures that the rule of law is upheld. In a
broader context, section 3 of the LPA requires that the Act be interpreted through the
prism of the Constitution. This is consistent with the co nstitutional objective of
section 39(2) of the Constitution, which is to ensure that the interpretation of
legislation aligns with the spirit, purport and objects of the Bill of Rights. For
completeness, section 39(2) of the Constitution provides as follow s:
When interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must promote the spirit, purport
and objects of the Bill of Rights.
[34] Section 39(2) introduced a mandatory requirement to construe every piece of
legislation in a manner that promotes the ‘spirit, purport, and objects of the Bill of
Rights. In Natal Joint Municipal Pension Fund v Endumeni Municipality ,2 Wallis JA
provided a comprehensive definition of interpretation and stated as follows:
Interpretation is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument, or contract,
having regard to the context provided by reading the particular provision or
provisions in the light of the document as a whole and the circumstances
attendant upon its coming into existence. Whatever the nature of the
document, consideration must be given to the language used in the light of
the ordinary rules of grammar and syntax; the context in which the provision
appears; the apparent purpose to which it is directed and the material known
to those responsible for its production. Where more than one meaning is
2 2012 (4) SA 593 (SCA).
possible each possibility must be weighed in the light of all these factors. The
process is objective, not subjective.3
[35] In accordance with the guiding principles articulated above, I hold the view
that only the LPC can give effect to/ implement the advice a nd decisions rendered by
the DC. Specifically, section 40(8) of the LPA envisages that once the LPC accepts a
decision of the DC, it is exclusively the responsibility of the LPC to execute and
implement that decision. The DC, functioning as a subcommittee of the LPC, lacks
the capacity to enforce its own decisions. The DC is subordinate to the LPC. A
proper interpretation of section 40(8) of the LPA suggests that once the DC decides
on a matter and the LPC subsequently endorses that decision, the LPC assume s the
exclusive authority to implement it. The LPC serves as the definitive decision -making
body. The decision of the DC does not hamstring the LPC. This interpretation, in my
view, is underscored by section 6 of the LPA, which provides that:
“6. Powers and Functions of Council
(1)(a) In order to achieve its objects referred to in Section 5 , and, having due
regard to the Constitution, applicable legislation and the inputs of the Ombud
and Parliament, the Council may -
…
(v) institute or defend l egal proceedings on behalf of the Council;
(vi) impose monetary penalties;
…
(x) delegate any of its powers and functions to its committees or Provincial
Councils, subject to any conditions it may impose, which delegation does not -
(aa) divest the Council of the power o r function so delegated; and
(bb) preclude the Council from varying or setting aside any decision
made under a delegation .” (My emphasis added)
3 At para 18.
[36] Section 6 makes it abundantly clear that the DC acts through a delegated
power from the LPC. In delegating its power, the LPC does not divest its elf of the
power or function so delegated. Thus, the LPC may accept or reject the
recommendation of its subcommittees. Most importantly, in terms of section
6(1)(a)(x)(bb) of the LPA, the LPC may vary or set aside any decision made under a
delegation to the DC or any of its committees. Evidently therefore , the decision of a
DC does not bind the LPC. It can be varied and set aside by the LPC. The argument
proffered by the respo ndent’s counsel that the decision of the DC is binding on the
LPC offends the provisions of section 6.
[37] In summary, the DC is a disciplinary body established by the LPC in terms of
section 37 of the LPA and is tasked with conducting disciplinary hear ings subject to
the provisions of section s 39 and 40 of the LPA together with the LPA Rules. The
applicable sections of the LPA and the relevant clauses of the LPA rules do not make
the content of a ruling by a DC, nor the sanction deemed appropriate by su ch DC
final and binding on the LPC. Accordingly, the LPC is empowered, in terms of section
40(3)(a)(iv) of the LPA, to bring this application and have the respondent suspended
from the roll of practitioners or have her name removed from the roll of legal
practitioners even though such relief differs from the sanction and recommendations
of the DC. Consequently, the argument that the decision of the DC is binding on the
LPC falls to be rejected.
Should the respondent be struck from the roll of attorneys or suspended?
[38] The test to determine whether a person is fit and proper is well established in
our law and needs no further elaboration.4 A determination of whether a legal
practitioner must be struck from the roll of attorneys involves a three -staged inquiry.5
The first part of this enquiry is to determine whether the offending conduct has been
proven on a balance of probabilities.6 Once this is shown, the second issue is to
determine whether the perso n concerned is fit and proper to continue to practice,
4 Hewetson v Law Society of the Free State 2020 (5) SA 86 (SCA) at para 4 .
5 Jasat v Natal Law Society 2000 (3) SA 44 (SCA) at 51C.
6 Nyembezi v Law Society, Natal 1981 (2) SA 752 (A) at 756H 758A; Kekana v Society of Advocates
of South Africa 1998 (4) SA 649 (SCA) at 654D.
considering the proven misconduct.7 This inquiry involves the weighing up of the
conduct complained of against the conduct expected of a legal practitioner and, to
this extent, entails a value judgmen t.
[39] The third enquiry is whether, in all the circumstances, the person concerned is
to be removed from the roll of attorneys or whether an order suspending him /her
from practice for a specified period will suffice. Whether a court will adopt one cour se
or the other will depend upon such factors as the nature of the conduct complained
of, the extent to which it reflects upon the person's character or show s him/her to be
unworthy to remain in the ranks of an honourable profession,8 the likelihood or
otherwise of repe ating such conduct and the need to protect the public.
[40] Simply put, the court must first decide, as a matter of fact, whether the alleged
offending conduct has been established. If the answer is yes, a value judgment is
required to determine whether the person concerned is not fit and proper, as
envisaged in the LPA. And if the answer is again in the affirmative, the court must
decide in the exercise of its discretion whether, in all the circumstances of the case,
the per son in question is to be removed from the roll or merely suspended from
practice.
[41] Every case must be determined in the light of its own facts. If a court believes
that after a period of suspension, the person will be fit and proper, the appropriate
order would ordinarily be one of suspension.9 This is because the implications of
removing a legal practitioner from the roll for misconduct are serious and far -
reaching. It is envisaged , prima facie at least, that a legal practitioner who has been
struck from the roll will never be permitted to practise again because the misconduct
complained of is of such a serious nature that it manifests a character defect and a
lack of integrity, rendering the person unfit to practise.10
7 Law Society of the Cape of Good Hope v C 1986 (1) SA 616 (A) at 637B -C.
8 Incorporated Law Society, Transvaal v Mandela 1954 (3) SA 102 (T) at 108D -E.
9 Malan and Another v Law Society of the Northern Provinces 2009 (1) SA 216 (SCA) at par 8.
10 Incorporated Law Society, Natal v Roux 1972 (3) SA 146 (N) at 150B; See also Cirota and Another
v Law Society of the Trans vaal 1979 (1) SA 172 (A) at 194B - E.
[42] In the pres ent matter, the offending conduct levelled against the respondent is
common cause. The respondent does not dispute that she is guilty of it, nor does
she contest the outcome of the Investigating Committee and the DC proceedings . It
was for this reason that she paid all the fines imposed upon her by the Investigating
Committee and the DC , and did not invoke her appeal rights in terms of section 41 of
the LPA. What is critical in this matter is the second and third parts of the enquiry,
which involve a determination of whether, in all the circumstances of the case, the
respondent is fit and proper, considering the proven misconduct , and whether she
should be suspended from practice for a fixed period or should be struck off the rol l.
[43] In determining whether the respondent is a fit and proper person, the court
must weigh up the offending conduct complained of against the conduct expected of
a legal practitioner. In doing so, as I should, I must restate the well -established
principle in our law that the legal profession, as codified in the LPA and the relevant
Rules and Code of Conduct, is an honourable one and, as such, demands complete
honesty, reliability and integrity from its members.11 Legal practitioners are expected
to ac t with integrity and honesty and to uphold the ethical standard s of the
profession. Legal practitioners should only be allowed to practise once they are able
to convince a court that they are fit and proper persons to practise as such .12
[44] As I see it, the core issue in this matter is not the fact that the respondent
allowed the complainant's claim to prescribe in her hands. Instead, the primary
concern raised by the LPC pertains to the respondent ’s actions in dishonestly
concealing the prescription. In summary, the complainant's claim prescribed, and the
respondent misrepresented to her that the matter was settled. The respondent
inquired regarding the amount the complainant would consider acceptable for
settlement. In response, the complainant indic ated that she would accept R350 000.
Subsequently, the respondent paid the complainant R398 000 from her personal
funds. Expressed differently, the respondent misrepresented to her client. It is this
conduct that this court must evaluate, to determine whet her it warrants her being
struck off the roll or suspended.
11 Vassen v Law Society of the Cape of Good Hope 1998 (4) SA 532 (SCA) at 538G
12 [2009] 1 All SA 133 (SCA)
[45] The respondent was frank and candid when she was confronted by the LPC.
She did not deny the allegations against her. Importantly, the reasons that prompted
her to misrepresent to her clien t (the complainant) were not challenged and, in my
view, are a factor that weighs heavily in her favour and must be considered in the
value judgment exercise. The respondent asserted in her affidavit that at the time
she was handling the complainant's matt er, she came to know of the personal
circumstances of the complainant and the environment the complainant lived in. The
complainant informed her that she (the complainant) had a soup kitchen, which the
respondent decided to contribute to regularly.
[46] When the complainant visited the respondent's residence to collect donations,
she was often accompanied by individuals who struck the respondent as dubious
and ‘unsavoury ’. Although the respondent was never directly threatened, she
became increasingly aware that the complainant had connections to people who
could potentially harm her if she became dissatisfied with her.
[47] The respondent asserted that it was the first and only matter that she had
ever negligently allowed to prescribe. After she dis covered that the matter had
prescribed, she went into a complete panic. She was scared to tell the complainant
that her claim had prescribed. She feared that if the complainant became angry, she
might harm her or her eight -year-old daughter. At the time, the respondent was also
pregnant and had another minor child at home. She said that she did not know what
to tell the complainant and was scared that if she told her what had happened to her
claim, she might send someone to injure her family members.
[48] Rather than informing the complainant about her option to file a claim against
the fidelity fund insurance, the respondent asked her if she would consider settling
the matter, to which the complainant agreed. In addition, i t appears that the reason
why the respondent did not tell her that she had such an option was because she
was embarrassed by what had happened and concerned that if it became known in
the profession it would affect her reputation. The respondent then proce eded to
make payments to the complainant which exceeded the amount of R350 000 which
the complainant had indicated she was prepared to accept in settlement . The
payments were made from the respondent's personal funds.
[49] It is crucial to note that the respondent never received any money from the
complainant, and her intent was never to cause the complainant any prejudice. This
is evident from her actions after the claim prescribed. If anything, from the
information disclosed in the papers, it seems that the complainant may not have
succeeded with a claim for breach of privacy/ unlawful search and seizure against
the police had an action been lodged on her behalf, given that the search of her
premises occurred in terms of a warrant which was issued, and a t the very least,
even if she had succeeded it is doubtful whether she may have been awarded as
much as R 350 000 in damages.
[50] This is not a case where the respondent received a lump sum payment
pursuant to a legal action that was instituted on behal f of a client and embezzled
some of it for her benefit. Rather, the respondent made significant efforts to address
her mistake , despite her flawed and misguided approach. She endured considerable
financial strain by paying R398 000 to the complainant, whic h underscore d her
commitment to rectifying the situation. Significantly also, the respondent admitted
that her conduct in telling the complainant that there was a settlement agreement
when, in fact, there was no ne, was wrong.
[51] In the circumstances, although the respondent was dishonest, such
dishonesty does not l establish that she is a danger to the public or that she is not a
fit and proper person to practice as an attorney. After she discovered that the claim
prescribed, panic and a nxiety became the better of her and clouded her judgment.
Evidently, whilst there was a foolish, lapse or error of judgment on her part, it cannot
be said that her conduct evidences that she suffers from a character defect, which
renders her a danger to so ciety or the legal profession . In the result, it cannot be said
that the offending conduct is so gross and egregious that it manifests a lack of
integrity, such that it render s her unfit to remain on the roll of legal practitioner s.
[52] Having dealt with the first two inquiries, I now turn to deal with the third leg of
the inquiry, namely whether, in all the circumstances, the respondent is to be
removed from the roll of legal practitioners or whether an order suspending her from
practice for a specified period would suffice. The respondent took instructions to
represent the complainant 14 years ago. The respondent has been in practice for all
these years and no other complaint has been lodged against her in the past ten
years.
[53] The disciplinary proceedings against the respondent were instituted more
than three years ago. The respondent was still young and a junior attorney when the
incident happened. She had just established her own practice. She was youthful and
inexperienced. Consi dering her fear of the complainant, her relative youth and
inexperience during this critical moment should be regarded as mitigating factors
deserving of understanding and compassion.
[54] Notwithstanding , the respondent has been untruthful to the compla inant.
Whilst the untruthfulness of the complainant must be frowned upon, it must be
stressed that not all forms of dishonesty warrant the removal of an attorney from
practice. I am fortified in this regard by the admirable dictum expressed by Scott JA,
as he then was, in Jasat v Natal Law Society,13 where the learned judge noted that
the profession of an attorney is an honourable one and demands complete honesty,
reliability and integrity from its members. However, as he went on to point out, this
does not mean that any untruthfulness, however trifling, will render an attor ney unfit
to practice and liable to be struck off the roll. As important as the requirements of
honesty, reliability, and integrity are, each case must undoubtedly be examined in the
light of its own facts and circumstances.
[55] Seemingly, the LPC ackn owledged that the respondent is not a danger to
society as it did not institut e any interdictory application to prevent her from
continuing to practice. The respondent admitted her wrongdoing and did not try to
delay or frustrate the disciplinary proceedin gs that were instituted against her. She
paid the fine s that were imposed upon her. In fact, it transpired that she paid the LPC
more than she was fined, and it has undertaken to refund the excess . At the hearing
of th e application, th e Court was assured by the respondent’s counsel that any
lingering concern s that th e Court m ight have in respect of a possible recurrence
13 Note 5 para 12 .
should be assuaged by the nature of the respondent's practice , which focuses on
debt review, family law and criminal la w, which do not involve issues of prescription.
[56] The court was further informed that the respondent is responsible for a
household comprising her three children and her husband, who has been
unemployed since 2011. Furthermore, she provides support fo r her two elderly
parents, who are also without employment. The respondent shoulders all the
financial responsibilities of her family and her parents, which include expenses
related to housing, education, and the costs of daily living . In our view, given t hat the
respondent paid the complainant R398 000 and the LPC a further R60 000 in fines
and costs i.e. a total of R458 000, she has already paid dearly for her mistake, and it
would be unjust to punish her further by suspending her from practice, thereby
rendering her unable to continue to support herself and her family.
[57] Consequently, having regard for the nature of the respondent’s misconduct
and the circumstances in which it occurred, and the factors personal to the
respondent and peculiar to her case and , the legitimate interest s of the profession
and the public and their justifiable expectation that the court will protect and further
their interests , we are of the view that an appropriate and fair order to be made is
one whereby the respondent is to be suspended from practice as a legal practitioner
for a period of three years , which suspension in turn is wholly suspended and
antedated to 1 Apr il 2023, subject to certain conditions which were proposed by the
parties, in an agreed draft order.
Costs
[58] Finally, as far as costs are concerned, whereas it is customary in matters such
as these to hold the defaulting practitioner liable for the c osts of the application, the
LPC fairly and properly conceded (given that the respondent has already paid
R458 000 out of her own pocket for her error of judgment) that, in the event that the
court was of the view that any order of suspension should in tur n be suspended, the
fair and proper order to make should be that the parties were to be liable for their
own costs.
Order
[59] In the result , I would make the following order:
[60] Having paid the fines imposed by the Disciplinary Committee in the sum of
R45 000 and having complied with the Disciplinary Committee’s further direction not
to appoint any more candidate att orneys for a period of three years from 15 March
2023 , and having provid ed proof of her registration with Prescription Alert, the
respondent is suspended from practice as a legal practitioner for a period of three
years, which suspension is wholly suspended for a period of three years , antedated
to 1 April 2023 on the following conditions :
60.1 That the respondent does not commit any acts of misconduct as
encompassed in the Legal Practice Act 28 of 2014, the LPC Code of Conduct
and/or the LPC Rules and Regulations , of which dishonesty is an element, or
which amounts to gross negligence in the performance of her duties and
responsibilities as an attorney.
60.2 That the respondent remains registered with Prescription Alert.
61. In the event that the respondent breaches any of the conditions set out above ,
the LPC may approach this court on the same papers, duly supplemented , for such
further order or relief against the respondent , as may be fit and appropriate .
62. The parties shall each be liab le for their own costs.
________________________
LEKHULENI JD
JUDGE OF THE HIGH COURT
I agree and it is so ordered.
_________________________
M SHER
JUDGE OF THE HIGH COURT
APPEARANCES
For the applicant: Ms Mahomed
Instructed by: Cowan -Harper -Madikizela Attorneys
For the Respondents: Mr Jacobs SC
Mr Aba ss
Instructed by: Parkar Attorneys Inc