Concerted effort needed from legal profession to fix ‘incompetent’ Legal Practice Council

Two recent high court judgments, as well as revelations about the politicisation of its disciplinary processes, suggest the Legal Practice Council is not currently serving the best interests of the legal profession

In June last year, I received an email from the Legal Practice Council (LPC), the national statutory body established by law to regulate the affairs of all legal practitioners (attorneys and advocates) and candidate legal practitioners.

The email invited me to meet with the LPC’s national chairperson and some of its provincial directors to discuss “some opinion pieces you have published, where you critique some of our processes and actions”.

I had already heard via the grapevine that some of the council members had been incensed by a column I had written in which I raised questions about the ability and willingness of the LPC to address the outrageous behaviour of advocate Dali Mpofu at the impeachment inquiry into former Public Protector Busisiwe Mkhwebane (among other things, Mpofu had threatened the chairperson of the inquiry and had falsely accused a former Public Protector of criminality).

Meeting requested

Interpreting the request as a not-so-subtle attempt to get me to shut up (so to speak), I agreed to the request for a meeting but added somewhat cheekily that “hearing from Council members may help me to get a better understanding of why the LPC has not always done as well as it should have, and to get some insight into the broader politics of it all. And nothing would be lost if it does not assist me – except an hour or two of my time”.

The LPC never came back to me about a suggested date for the meeting, and the meeting never took place.

It was therefore not surprising when I read earlier this month that the LPC – in the fashion of mid-level apparatchiks – had threatened reporter Karyn Maughan with legal action if she reported on the content of minutes of council meetings she had obtained.

Neither was I surprised to read that the LPC had irrationally claimed that because “none of the affected parties [in relation to Mpofu’s alleged misconduct at the Mkhwebane Inquiry] lodged any complaints with it”, this affected the quality of the evidence – even though everything Mpofu said or did during the two processes was broadcast and still available on YouTube.

Political loyalties

While several principled, honest, and competent individuals who have the best interests of the profession at heart currently serve on the council, I worry that some council members may be guided by their personal and (factional) political loyalties, instead of by their legal and ethical duties to the profession.

But even members of the profession who disagree with me about this, and who believe that the LPC’s approach in the various Mpofu matters is justified, would be hard-pressed to disagree with the editors of GroundUp who described the LPC last year as “hopelessly inept, or worse”.

As I wrote last year, in several cases involving politically connected legal practitioners, the LPC has shown an extraordinary reluctance to properly investigate complaints of misconduct against them, while dragging its feet, sometimes for years, before taking action against clearly dishonest practitioners.

But the problem goes beyond politics (however one defines “politics”) – as the two judgments I discuss below clearly illustrate.

Bad faith

Incompetence, a refusal to acknowledge and rectify mistakes, and a tendency by the LPC leadership to project their own attitudes and beliefs onto their critics and to assume that those who offer criticism and advice are acting in bad faith or with a political motive, hamper the ability of the LPC to do what it was created to do.

To illustrate this point, let me first turn to the high court judgment in National Association of Democratic Lawyers and Others v the South African Legal Practice Council and Others, handed down last week.

After conducting an election for members of the Board of the Legal Practitioners’ Fidelity Fund, the LPC decided that it had misinterpreted its own rules on how the election had to be conducted and unilaterally announced that it had decided to not tally the votes cast and would, instead, re-run the election.

I pause here to note that voting is not conducted via secret ballot (legal practitioners are required to provide their details), which raises the possibility that some LPC office-bearers might have known the results of the election at the time it decided not to formally tally the votes at a special council meeting as required by the rules.

The judgment does not pursue this question, and I take no position on whether the LPC’s failed attempt to cancel the election was linked to the known or feared outcome of the election.

High court order

As neither the LPC Act nor the rules empowered the LPC to refuse to tally the votes and, in effect, to cancel the already conducted election, the National Association of Democratic Lawyers (Nadel), the Black Lawyers’ Association, and the Law Society of South Africa approached the high court for an order directing the LPC to tally such votes, release the outcome and publish the names of the successful candidates in the government gazette.

The court agreed, finding that the LPC had resorted to “impermissible self-help”’ as its only legal recourse was to launch an application for self-review, on the basis that it had applied its own rules incorrectly and that, as a result, the court should set aside the election.

The judgment takes a dim view of the arguments advanced on behalf of the LPC. The LPC submissions, the court held, “demonstrates not only an unfamiliarity with the provisions of Paja (the Promotion of Administrative Justice Act) but is also illogical”.

Its arguments are variously described as “tenuous”, “ludicrous”, “fundamentally flawed”, “vaguely patronising”, “disingenuous”, “self-serving”, and “based on its overinflated, and ultimately erroneous, sense of its role and functions”.

The court took the unusual step of ordering the LPC to pay the costs of the other parties on an attorney-client scale (despite this being an urgent application for interim relief) after finding that the LPC had “conducted itself in a clear and indubitably vexatious and reprehensible” manner necessitating “extreme opprobrium”.

Foot-dragging

Of particular concern was the fact that after dragging its feet for eight months, the LPC initiated a re-run of the election shortly after the urgent action was launched, something Nadel described as a “contemptuous ploy to force the re-run of the election through”. The court then remarked as follows:

To add insult to injury, the SALPC afterwards files an answering affidavit in which it, rather obtusely, informs the Court tasked with deciding whether to interdict the call for nominations, setting of a date and re-run of the election, that the call for nomination is a fait accompli and that ‘(t)he LPC is not going to change its decision on the impugned elections…’ and that ‘(t)here will be a rerun of the election process….”. The sheer brazenness of this submission belies the paucity of legally or factually sound arguments raised by the SALPC in opposing this application.

Another recent judgment serves as a further reminder that the LPC’s tardiness and incompetence can also have serious negative consequences for candidate attorneys and other legal practitioners.

In the case of Matlhwana v South African Legal Practice Council, Mr Matlhwana changed jobs more than 22 months into his 24-month stint as a candidate attorney.

He duly lodged a Cession Agreement with the Legal Practice Council (as required by law) to ensure that the more than 22 months of the 24-month period of articles already served could be “carried over” to his new employer, leaving him with just more than a month to serve with his new employer before he could be admitted as an attorney.

After submitting his documents, he heard nothing from the LPC. It did not acknowledge receipt of the Cession and did not communicate whether the Cession had indeed been registered or not.

It was only when Mr Matlhwana applied for admission that the LPC informed him that it had not registered the Cession Agreement and that he had not completed his articles as required. The decision was unlawful, but also clearly unjust, but despite this, the LPC took the (in my view callous) decision to oppose Mr Matlhwana’s application to have the problem rectified.

Procedurally unfair

The court again took a dim view of the LPC’s approach, finding that it had acted in a procedurally unfair manner and had made a material error of law, and pointing out that it was “simply not open to the LPC to adopt an interpretation of the rules which has as its consequence the arbitrary exclusion of certain persons from pursuing entry into the legal profession”.

Holding that the approach adopted by the LPC was “not in keeping with its statutory obligations and is to be deprecated”, the court again ordered the LPC to pay the costs of the application on an attorney and client scale, which costs include those of two counsel.

One can only wonder how many other candidate attorneys had suffered similar injustices at the hands of the LPC and hope that they too had access to the kind of resources required to pursue justice in our courts.

Hopefully, the LPC can still be fixed, but that may require an organised and concerted effort from legal practitioners and professional legal bodies such as Nadel, the Black Lawyers’ Association, and the Law Society of South Africa.

For now, I am heartened by the fact that these organisations put their differences aside to jointly challenge the LPC’s decision not to tally the votes in an election it had already conducted.

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