Mkhwebane’s Stalingrad approach: We need to talk about integrity in the legal profession

The questionable conduct of some of the lawyers representing Public Protector Busisiwe Mkhwebane, Judge President John Hlophe and former President Jacob Zuma (to name but a few), has elicited harsh criticism and led to calls for our courts to censure the culprits. Sadly, this kind of conduct is just one of the factors contributing to perceptions about the lack of integrity within the legal profession. A quick look at recent judgments from our High Courts suggests that far too many members of the legal profession are fundamentally dishonest and lack basic respect for the legal processes.

Writing about the most recent attempts by Public Protector Busisiwe Mkhwebane and her lawyers to stall her impeachment, Daily Maverick columnist Professor Balthazar, expressed concern about these “blatant and legally unprincipled attempts at the exploitation of legal gaps, which only serve to delegitimise the entire legal system”. Balthazar further suggested that courts consider imposing punitive costs on such litigants in their personal capacity, as well as on “those lawyers who are using the thinnest veneer of legality to postpone the constitutional imperative, which in this case is to investigate the possible impeachment of the Public Protector”.

On this particular issue, I am entirely in agreement with the Daily Maverick columnist, but I worry that the unethical behaviour of some lawyers representing litigants who engage in Stalingrad tactics to protect themselves from accountability, are merely symptoms of a much larger integrity crisis within the legal profession. Looking only at judgments reported on SAFLII in the past 6 months, I counted more than a dozen cases in which the Legal Practice Council (LPC) approached the court to have an attorney suspended or struck off the role for their unlawful and dishonest behaviour.

In many of these cases, the implicated attorney refused to co-operate with the LPC investigation. In several instances, they invoked procedural arguments or complained about imaginary infringements of their rights, while not offering a defence on the merits of the charges levelled against them. In some instances where a defence was offered, the implicated attorney advanced blatantly false claims, ironically providing further evidence of their dishonesty. A few examples will illustrate my point.

In South African Legal Practice Council v Ntsie (8 March 2022), the Gauteng High Court struck Mr Thabiso Ntsie from the roll of attorneys for, amongst others, misappropriating funds held in trust for his clients. In one instance a Ms Nzama complained that Mr Ntsie had refused to repay the R236 353.00 she had deposited into his trust fund for the purchase of a house, after the transaction fell through.  The court noted that Mr Ntsie failed to co-operate with the investigation that followed and also failed to respond to the findings of the investigation.

In South African Legal Practice Council v Tshakafa (4 March 2022), the Gauteng High Court struck Mr Shumani Tshakafa from the roll of attorneys for, among others, practicing without fidelity fund certificates, and for misappropriating funds of a client to the tune of R350 000. In short, the court found that Mr Tshakafa had received “Mr Twala’s funds on trust; misappropriated Mr Twala’s funds; delayed repayment to Mr Twala; utilised the funds of other trust creditors when he made payment to Mr Twala; and manipulated his accounting records to conceal the accurate state of affairs.” He also failed to co-operate during an inspection of his practice.

In Legal Practice Council v Lielies and Another (8 February 2022), the Free State High Court suspended Mr Loyd Lelies from practicing as an attorney for practicing without a fidelity fund certificate and mismanaging his trust fund. The court noted that instead of dealing with the merits of the findings against him, Mr Lelies argued that his constitutional rights had been infringed, and relied on several irrelevant procedural arguments. What must sound familiar to anyone following the various high profile cases in which litigants use the so called Stalingrad approach to prevent accountability, the High Court complained that the various affidavits submitted to the court by Mr Lelies:

are replete with accusations against the LPC, the Law Society before November 2018, and their functionaries which are really unfair and uncalled for. He even accused the independent auditor for being guilty of contempt of court. I am satisfied that the respondent has demonstrated a remarkable lack of insight concerning the professional and ethical standards expected of an attorney.  Obstructionism, denials and evasions have no place in matters of this nature and it was expected of respondent to put full facts before the court.

But the most bizarre case from the last 6 months involving a dishonest legal practitioner must be that of Jelal v South African Legal Practice Council (19 January 2022), which the KwaZulu-Natal High Court rejected an application by Ms Shireen Jelal to be readmitted as an attorney after she was struck from the roll in November 2007. She was originally struck from the roll after pleading guilty to corruption, and sentenced to four years imprisonment wholly suspended for a period of five years on certain conditions. But this did not end her dishonest conduct. As the High Court explains:

On 30 November 2007 when the applicant’s name was struck-off the Roll, the court interdicted her from practising and or holding herself out as an attorney.  In about a year from that date, she was already holding herself out as an attorney. She was assisting counsel as if she was an instructing attorney. She even demanded to be paid for the services she rendered which were services to be rendered by an instructing attorney. She dabbled in the practice of an attorney creating confusion for the authorities and for clients or members of the public.

It is therefore not surprising that five years later Ms Jelal was again convicted of a criminal offence, this time for impersonating an attorney in contravention of s83(1) of the Attorneys Act. Her appeal to the Free State High Court was dismissed in 2017, and on 17 May 2018 the Supreme Court of Appeal refused her application for special leave to appeal. What must again sound familiar to anyone following the high profile cases in which the Stalingrad defence is being used, the High Court held that Ms Jelal “was found to have lied in circumstances where, if she was telling the truth, the conclusion must be that the magistrate, prosecutor and the investigating officer lied”.  In the judgment on sentence the trial magistrate had this to say.

I have observed you throughout the proceedings. You branded everybody or every person who testified against you as a liar by denying some obvious facts that you in fact introduced yourself as an attorney and you knew that that is what you did, but be it as it may you held that you did not utter those words. That in itself shows that you don’t show any remorse for what you have done on that particular day, 9 January 2009.

Despite these damning findings Ms Jelal applied to be readmitted as an attorney one year later. Shockingly, the LPC originally submitted only a letter to the court hearing the readmission application in which it stated that it had considered Ms Jelal’s application for re-admission and that it will not oppose the application for re-admission. It furnished no reasons for its stance and even after the court ordered it to furnish such reasons the court expressed its dissatisfaction, and noted that the affidavit delivered on behalf of the LPC did not reveal a clear rational basis for the decision not to oppose the application.

Only a small number of legal practitioners are ever struck from the roll, and it would be wrong to conclude that the legal profession as a whole is tainted by dishonesty and incompetence. But it is worrying that in so many of the cases, the attorneys implicated in wrongdoing did not attempt to address the substance of the complaints against them, treating the legal process as completely divorced from any considerations of what is true or false or what is right or wrong.

A full bench of the Gauteng High Court expressed similar concerns last week in the matter of Hlophe v Judicial Service Commission. Noting that, if acceded to, some of the procedural arguments advanced by Judge President Hlophe would have the effect of making it impossible for the JSC to ever make a finding against him, despite the fact that he has been found guilty of gross misconduct by a Judicial Conduct Tribunal, the court remarked:

The JSC process is not a game of chess poised at checkmate stage. Such a perspective would constitute both an abuse of court process and a monumental waste of scarce judicial resources. Let us not lose sight of the fact that this aspect of the case before us is not an attempt by the applicant to advance a legitimate defence to the charge of gross misconduct against him.

Sadly, as both the high-profile Stalingrad cases and the LPC cases illustrate, this is not an attitude shared by all lawyers.

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