On tardiness and torpidity: It’s time the Legal Practice Council stepped up to do its duty

Since it became responsible for the task of disciplining lawyers in 2018, the Legal Practice Council’s lackadaisical enforcement of the applicable ethical and professional rules, as well as its sometimes irrational or politically motivated refusal to act against some wrongdoers, have rightly been criticised.

We need to talk about the Legal Practice Council (LPC), the body tasked with protecting the integrity of the legal profession by ensuring that legal practitioners conduct themselves in an honest and ethical manner to “promote and protect the public interest”.

We need to talk about the LPC because it is failing to do what it is legally obliged to do: act with speed and efficiency to protect the public and the legal profession more broadly against unscrupulous and unethical legal practitioners whose actions bring the legal system into disrepute.

Since it became responsible for the task of disciplining lawyers in November 2018, the LPC’s lackadaisical enforcement of the applicable ethical and professional rules, as well as its sometimes irrational or politically motivated refusal to act against some wrongdoers, have rightly been criticised by the courts, legal practitioners, academics and journalists, with the editors of GroundUp politely describing the LPC as “hopelessly inept, or worse”.

As illustrated by the recent exposé by Carte Blanche and other investigative journalists of the alleged corrupt and unconscionable actions of Eastern Cape attorney Zuko Nonxuba, when the LPC fails to do its job diligently, it can have catastrophic consequences for the victims of unscrupulous lawyers.

In this case, the victims are the desperately poor families of children with severe disabilities who he allegedly defrauded of many millions of rands over many years.

This conduct goes back to at least 2011 and has been widely reported in the media over the past 10 years.

In August 2016, in a case before the Eastern Cape High Court dealing with gross overcharging by Nonxuba, a “clearly incensed” Judge Jeremy Pickering said the court papers constituted prima facie evidence of gross misconduct and unconscionable over-reaching on Nonxuba’s part, and ordered that the documents be handed over to the Cape Law Society (the predecessor to the LPC) for its consideration.

This referral seemed to have had no effect.

In 2018, the Special Investigating Unit again referred damning evidence of fraud against Nonxuba to the Law Society. The LPC, who took over the duty to discipline legal practitioners from the Law Society in November 2018, refused to investigate the matter on the spurious ground that Nonxuba was facing a criminal investigation which had to be completed first.

According to Carte Blanche, the Western Cape High Court finally ordered the LPC to investigate the matter in 2019. Nonxuba was eventually suspended under an order from the Western Cape High Court on 18 April 2022.

In a Carte Blanche interview broadcast on Sunday, LPC spokesperson Kabelo Letebele (joined in the room by the LPC’s chief executive officer) falsely claimed that the first time the LPC became aware that there could be a problem in “any Nonxuba matter” was on 2 August 2021.

Not only was the LPC made aware of problems in 2018, but the LPC had in fact also submitted a damning report on irregularities in the handling of Nonxuba’s trust accounts to the Western Cape High Court on 31 March 2020.

Letebele may have based his false claim on a media statement issued by Janine Myburgh, chairperson of the LPC on 23 June 2023, in which she suggested that the LPC acted relatively swiftly against Nonxuba as the LPC only became aware “that in some of the matters in which Mr Nonxuba was ordered by the Court to establish trusts, the trusts in question had either not been established or had not received any funds from Mr Nonxuba”, on 2 August 2021.

The latter statement is misleading as the LPC had been aware of complaints that Nonxuba’s clients were not receiving money they were entitled to in terms of various court orders long before this date. Whether the LPC was aware of allegations that trusts were not established is therefore something of a red herring.

The failure of the LPC (and before it the Cape Law Society) to take timeous and effective steps to protect the public in the Nonxuba matter, is unfortunately not as rare as it should be.

A quick perusal of the law reports confirms that there is a systemic problem.

Most notably, in November 2021, in a matter dealing with a dishonest legal practitioner that took eight years to come before the court, the Western Cape High Court in Legal Practice Council v Van Wyk complained in a scathing judgment that this happened “because of a rank failure on the part of the regulatory bodies responsible for the control and governance of the profession to properly carry out their duties”.

The court took the LPC to task for the way it handled the matter, complaining that despite its “wide powers and the clear statutory injunction that disciplinary proceedings against errant practitioners are to be instituted and held as soon as circumstances reasonably allow, instances of tardiness and torpidity on the part of the LPC have become more frequent”.

The court also pointed out that it would not be sufficient for the LPC to blame “resource, capacity and financial constraints” as it was the duty of the LPC to address such matters. As a result, the court directed that:

A copy of the judgment is to be furnished to the Chairperson of the LPC, for her comment and report-back as to the causes and deficiencies responsible for the matter having taken eight years to come before the Court, and the manner in which the matter was dealt with, together with her report-back as to what steps have been taken by the LPC to hold accountable those who were responsible for what happened, and to ensure that effective measures are put in place to ensure that the LPC gives effect to its statutory obligations.

It is unclear what action the LPC took to address the problem, but it did not seem to have had the required effect. This is why it was not surprising when the same high court again took the LPC to task for refusing to investigate a complaint laid by GroundUp against a dodgy lawyer implicated in lottery corruption.

GroundUp alleged that the lawyer had made dishonest statements under oath in court proceedings, and falsified documents and forged signatures on affidavits in his attempt to stop GroundUp from publishing articles implicating him in corruption.

In its judgment in Groundup News NPC & 2 Others v The South African Legal Practice Council & 4 Others, the court faulted the LPC’s investigative committee for dismissing the complaint without doing any investigation, as it was legally required to do.

The court rejected the LPC’s argument that it could not investigate the matter before the allegations were “tested by an authority other than the LPC or be supported by reasonable and credible verification”, pointing out that this wrongly places the onus to investigate on complainants, when this was the task of the LPC. (The claim is also puzzling, given that GroundUp did in fact provide the LPC with credible evidence of wrongdoing on the part of the legal practitioner.)

To make things worse, the LPC claimed that the legal practitioner had “given a reasonable explanation to the allegations made against him” and that there was therefore no reasonable prospect of a charge of misconduct against him succeeding.

This claim is false.

As the judgment points out, the legal practitioner “gave no explanation whatsoever of his conduct. His only response was to raise problems with the manner in which the complaint was presented”.

This false claim raises questions about the integrity and competence of the members of the investigating committee, but it is unclear whether the LPC looked into this.

The LPC may well argue (correctly, in my view) that its task is being made more difficult by the many implicated lawyers who deploy “Stalingrad” tactics or otherwise abuse the rules applicable to disciplinary hearings and court processes to prevent or delay action being taken against them.

The fact that some implicated lawyers seem to believe that there is nothing wrong with misleading the court by advancing clearly false propositions does not help either.

One would have had more sympathy with the LPC had it provided clear guidance to members of the profession on when the use of such tactics would be in breach of the Code of Conduct, and had it called the prominent lawyers who overstep the line (some of them representing powerful politicians and politically connected clients) to account.

The Code prohibits legal practitioners, candidate legal practitioners and juristic entities from “doing anything which could or might bring the legal profession into disrepute”, and reminds practitioners that while they have a duty to treat the interests of their clients as paramount”, this is always subject to their duty to the court; the interests of justice; observance of the law and the maintenance of the ethical standards.

I would argue that the Code imposes a duty on the LPC to act against legal practitioners who serially make self-evidently false factual claims to a court or other tribunal, assist clients to have matters endlessly postponed for no valid reason or based on false claims, pursue hopeless matters with no prospect of success whatsoever on behalf of their clients as a delaying tactic or to gain a political advantage for their client, or assist their clients to facilitate the launching of scurrilous and unsubstantiated attacks against the legal system, the judiciary or individual judges.

This kind of behaviour brings the legal profession into disrepute and undermines the legitimacy of the legal system.

Earlier this year, the KwaZulu-Natal High Court, in the case of Grundler N.O and Another v Zulu and Others, summarised the problem as follows:

There is a rising trend in the legal profession of practitioners demonstrating disrespect (if not outright contempt) for courts and the judiciary. One does not need to look far to find examples of this sort of behaviour, from the ranks of senior counsel to the most junior of candidate attorneys. It manifests not only in how practitioners interact with opponents and judges in and out of court but also in the launching of prima facie spurious applications, lacking in factual or legal foundation, that are designed to “snatch bargains”, achieve ulterior objectives, delay and/or obstruct. It is a “win at all costs” attitude that does a disservice to the profession and to the country and sets an appalling example to the public at large. It ignores not only the oath that all lawyers take upon their admission but also the distinction between the duty that practitioners owe to their clients and the separate duty that they owe to the Court.

The LPC would do well to take heed of this judgment and to act proactively to protect the integrity of the profession, by providing guidance to especially new practitioners who might believe that the LPC views such abuses as perfectly acceptable.

The LPC need not wait for complaints to be lodged against practitioners, as section 39 of the Legal Practice Act imposes a legal duty on the executive officer of the LPC to refer allegations of misconduct to the investigating committee if such allegations are in the public domain and there are reasonable grounds to suspect that a practitioner may be guilty of misconduct.

Our courts are not blameless in all of this, either.

Over the past 15 years, they have done little to curb these abuses and to hold practitioners accountable.

But some judges are finally starting to push back, most recently in a judgment of the full Bench of the KwaZulu-Natal High Court in Maughan v Zuma and Others in which it found that Jacob Zuma’s private prosecution of Billy Downer and Karyn Maughan constitutes an abuse of process as it has been instituted for an ulterior purpose.

Sadly, it is far from clear that the LPC will take action against practitioners who make themselves guilty of the practices highlighted by the court in Grundler.

Perhaps pressure from within the legal profession might help to nudge the LPC into doing the right thing.

Not that there is much evidence that the overwhelming majority of legal practitioners would be prepared to risk anything by speaking up.

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