Letters to the editor – August 2017

August 1st, 2017
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Letters are not published under noms de plume. However, letters from practising attorneys who make their identities and addresses known to the editor may be considered for publication anonymously.

 

Complaint about an attorney

It is only natural for professionals to take pride in their professions and to not want the mere reference to their professions to invoke negative emotions in the minds of people. In this regard legal practitioners are no different. I invite you to read the following account of my experiences and decide for yourself whether or not the image of the profession is being adequately upheld.

On 30 October 2015 I lodged a complaint against an attorney based in the Cape. On 16 November 2015 the Cape Law Society (CLS) made it clear they have no intention of investigating my complaint and referred me to the National Consumer Commission (NCC). After a further representation by myself, the CLS referred me yet again to the NCC stating:

‘Once the NCC has concluded their investigation, and should [the attorney] be found guilty of unprofessional conduct by the NCC, then you may provide our offices with that information where after we will determine whether we are able to investigate your complaint further.’

Further representations by myself followed, which were initially met with circumventing replies by the CLS. Eventually the CLS informed me my complaint would be referred to their Disciplinary Committee for consideration on 13 June 2016. On 22 June 2016 the CLS claimed ‘The Committee directed that you be advised that as there was no prima facie complaint against [the attorney], which required a response, the Society was closing its file.’

I requested to be provided with the names and contact details of the members of the Disciplinary Committee, as well as a copy of the minutes of the relevant meeting whereupon the CLS advised me the names of the members of the Disciplinary Committee could be found on the their website and the minutes of the meeting comprised of the correspondence, which I forwarded to the CLS.

I informed the CLS that I was unable to find the names of the members of the Disciplinary Committee on their website and that the contact details of same had not been provided. I further pointed out the minutes of the meeting could not possibly comprised of only the correspondence which I forwarded to them. No response to the aforementioned was offered by the CLS.

I perused the website of the Law Society of South Africa (LSSA) and found the following encouraging words:

‘The attorneys’ profession is proud of its high professional standards and the low incidence of disciplinary action required by the provincial law societies. All attorneys are bound by a strict professional code.

It is part of the function of the councils of the law societies to act in the public interest. The law societies are committed to protecting the public against unprofessional and irresponsible conduct by attorneys and are prepared to investigate complaints which are submitted to them in good faith and which fall within their jurisdiction.’

I promptly forwarded all the correspondence between myself and the CLS to the LSSA, quoted the declaration on their website and closing my letter with: ‘In the light of the aforementioned, I would like to know from you whether or not you believe the statement on your website alluded to above, is justified.’

The LSSA circumvented my question by replying: ‘We cannot respond to you on whether the Cape Law Society dealt with your compliant adequately or not.’ Further representations by myself were met with even more attempts by the LSSA to circumvent the issue, intermixed with bureaucracy and high handedness. The LSSA steadfastly neglected to comment on the declaration on their website.

My persistence to obtain a reply led to an employee of the LSSA claiming: ‘I discussed the content of your correspondence with our co-chairs and have to advise again that we can not [sic] take the matter further.’ I requested to be provided with the contact details of the co-chairpersons. This information has, to date, not been provided.

As a last resort, I contacted the chairperson of the CLS. After numerous requests for an answer, I was eventually provided with a lengthy document purporting to be the reasons for the finding of the Disciplinary Committee. As the CLS had previously claimed the minutes of the meeting comprised of the correspondence that I forwarded to them. I find it inexplicable that the CLS now manages to provide two pages containing the background of my complaint, legal arguments and even quotes a judgment handed down by a court of law and once again claiming ‘… the reasons for the Disciplinary Committee’s decision … the Disciplinary Committee considered the matter and directed … the minutes of the meeting comprised of [sic] the correspondence exchanged between yourself and the Society … the Disciplinary Committee was functus officio … the Society did not believe that it was appropriate to provide you with the contact details of the members of the Disciplinary Committee.’ Several references were made to the ‘decision of the Disciplinary Committee’.

Inexplicabilities:

  • It was inferred that the NCC has jurisdiction to find an attorney guilty of unprofessional conduct.
  • No reasons other than ‘there was no prima facie complaint’ appears anywhere in the correspondence. Despite the aforementioned, the CLS managed to compile two pages containing the reasons for the ‘decision’ of the Disciplinary Committee.
  • Despite the absence of proper minutes of the meeting of the Disciplinary Committee, the CLS succeeded in compiling two pages of reasons for the ‘decision’ of the Disciplinary Committee.
  • Initially, the minutes of the meeting of the Disciplinary Committee comprised the correspondence, which I forwarded to the CLS. It now comprises the correspondence exchanged between myself and the Society.
  • Initially the CLS had no objection to me obtaining the names of the Disciplinary Committee on its website. It has since become inappropriate to provide same.
  • In the final analyses, based on the above, combined with previous disappointing experiences with the Law Society of the Northern Provinces, which were very much in the same vein as the above, I have come to the conclusion the provincial law societies are failing in the obligations placed on them by s 58(a) to (h) of the Attorneys Act 53 of 1979. You decide for yourselves.

WJ Claase, Pretoria

 

Response to complaint

We refer to the letter from Mr WJ Claase to De Rebus.

It is correct that Mr Claase laid a complaint with the Cape Law Society (CLS) against a practitioner. The background is that Mr Claase laid a complaint with the National Consumer Commission (NCC) against a client of the practitioner. In representing the client, the practitioner made representations to the NCC. Mr Claase maintained these representations amounted to misrepresentations and that the practitioner was misleading the NCC and that the practitioner made no effort to correct these misrepresentations.

The CLS responded to Mr Claase saying that it appeared the matter was still under consideration by the NCC; there was no evidence that the practitioner acted unprofessionally towards him and that the documentation merely set out disputes of fact.

It is correct that the CLS said that once the NCC concluded its investigation, and if it was determined that the practitioner had misled the NCC, the CLS would determine whether further investigation was required. The issue did eventually serve before the Society’s Disciplinary Committee, which found that there was no prima facie complaint against the practitioner, which required a response from the practitioner.

It is trite that a practitioner must act in the best interests of the client and present the client’s case in the best possible manner. On the basis of the evidence available, there is no indication that this was not the case here and we were unable to conclude that there was unprofessional conduct.

The CLS’s entire file consists of the correspondence with Mr Claase. Decisions are recorded, but detailed minutes of the discussions are not kept.

Mr Claase’s further correspondence resulted in the Disciplinary Committee providing him with its written reasons for reaching the decision it did. We believe that we have acted to the best of our ability.

We take accusations against our members seriously and complaints are thoroughly investigated.

Frank Dorey, Director Cape Law Society, Cape Town

 

Discretion

A reminder of the meaning of ‘discretion’ in the context of the administration of justice: In McDonald’s Corporation v Joburgers Drive-Inn Restaurant (Pty) Ltd and Another; McDonald’s Corporation v Dax Prop CC and Another; McDonald’s Corporation v Joburgers Drive-Inn Restaurant (Pty) Ltd and Dax Proper CC 1997 (1) SA 1 (A) it was said at 32A: ‘The use of the word “may” in the section appears to grant a discretion.’

In Van der Walt v Metcash Trading Limited 2002 (5) BCLR 454 (CC) Goldstone J said at 459 [13]: ‘As O’Regan J pointed out in [Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others 2000 (8) BCLR 837 (CC)]: “Discretion plays a crucial role in any legal system. It permits abstract and general rules to be applied to specific and particular circumstances in a fair manner.”

It would seriously diminish the efficacy of this role of discretion if a decision made pursuant to its exercise bound other judicial officers in a court at the same level in the later exercise of their discretion in subsequent cases’.

JO Van Schalkwyk, attorney, Johannesburg

 

How old is too old?

I saw the article ‘Never too old for school’ on Graham Rhodenburg (2017 (May) DR 15) and I became curious because I am in a similar situation. I am in my mid-50s and studying towards an LLB degree. I am not aware of an age restriction from qualifying as a legal practitioner and I do not know what the new Legal Practice Act 28 of 2014 says about it, but I just wonder whether law firms would accept us as candidate attorneys.

I would be interested to hear what law firm partners have to say.

Anonymous, Port Elizabeth

 

According to the Legal Practice Age 28 of 2014, there is no age limit to becoming an attorney.

Editor

 

Do you have something that you would like to share with the readers of De Rebus?

De Rebus welcomes letters of 500 words or less. Letters that are considered by the Editorial Committee deal with topical and relevant issues that have a direct impact on the profession and on the public.

Send your letter to: derebus@derebus.org.za

 This article was first published in De Rebus in 2017 (Aug) DR 4.

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