Ex Parte Sebatsana (GP) (unreported case no 022746/2023, 7-8-2024) (Vorster AJ (Van der Schyff J concurring))

The High Court in Pretoria authorised the Legal Practice Council (intervening party) to enrol, Malesela Sebatsana (the applicant) as a legal practitioner. This was after the court said that it was satisfied that the applicant was a fit and proper person to be admitted as a legal practitioner. The applicant approached the court after the Legal Practice Council (LPC) did not support the applicant’s admission to be a legal practitioner. Even after the Provisional Affairs Committee (PAC) of the LPC favoured the applicant after she had appeared before the PAC for it to determine whether she was a fit and proper person to enter the legal profession by way of admission as an attorney.

The High Court had to deal with the requirement that the applicant must be a fit and proper person to be admitted as a legal practitioner. The High Court pointed out that the applicant, in her founding affidavit, disclosed that in the latter part of 2016, while employed by the National Health Laboratory Service as a medical technologist, she faced disciplinary charges for falling asleep during the night shift and was dismissed for dereliction of duties in 2017. The High Court added that she worked the night shift during that period as she was studying for her LLB degree at North-West University.

The High Court pointed out that at the time of the incident the applicant was six months pregnant, and the applicant said that she had constantly requested to be released from the night shift as she had to work 12 hours without a break. The High Court said that the applicant confessed that sleeping on the job caused some critical work not to be done. She stated that she learned from her mistakes, apologised for her transgression and took full responsibility for the complications she caused her employer, especially because it involved the lives of other people.

The court pointed out that the applicant also disclosed to being charged with plagiarism, this was in 2019 during her fourth year at university, when she participated in a group assignment. The group, due to not finishing the assignment on time, decided that each member of the group should deal with one question and swap answers. As a result, the applicant was charged with plagiarism. The High Court said that the applicant pleaded guilty and took full accountability and as punishment, had to forfeit the module involved. She accordingly had to register for a single module the following semester in order to meet the LLB requirements.

The High Court added that in response to these disclosures the PAC requested the applicant file a supplementary affidavit and remove her application from the roll. She was also required to appear before the PAC to determine whether she was a fit and proper person to enter the legal profession by way of admission as an attorney. She was further requested to submit to the Council any documentation in relation to disciplinary matters.

The High Court said that the applicant complied with these requests and in April 2023 provided detailed documents relating to her disciplinary hearing at the National Health Laboratory Service, as well as a letter dated 12 April 2023 from the university. The letter confirmed that the applicant’s conviction which followed on the entering into a plea agreement with the university and indicated that the applicant had attended remedial programmes as part of her sanction. The university confirmed that the applicant never committed any further misconduct and was fully rehabilitated and supported her admission, confirming that she was indeed a fit and proper person for the purpose of her admission application.

The High Court pointed out that having considered the applicant’s submissions the PAC recommended to the LPC that the applicant be regarded as fit and proper to be admitted as a legal practitioner. However, the High Court said that the LPC raised concerns that the applicant’s misconduct involved dishonesty and that there appeared to be lack of remorse on her part. The High Court added that the applicant was required to provide a psychological report for further consideration to the LPC. The High Court pointed out that the applicant complied with the request. The report, which the LPC found not to be favourable, expressed the view that although the applicant was indeed a fit and proper person who could be admitted to practice, she should be monitored for a period of 12 months. The LPC in these circumstances opposed the applicant’s admission application and further requested she withdraw her application.

The High Court summarised that, among other reasons, the LPC’s opposition stated:

• That the applicant had referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) indicating that she was innocent and unfairly dismissed and, when the CCMA ruled in favour of the employer, the applicant appealed against this decision.
• The LPC highlighted that it was stated on behalf of the employer during the appeal that no request had ever been made by the applicant to her manager to be relieved of her duties during the night shift and that the applicant had been untruthful in this regard.
• The LPC also made extensive reference to the content of the clinical psychological report.

The High Court pointed out that although the LPC characterised the psychological report as being unfavourable to the applicant, the High Court said it was of a view that, reasonably interpreted, the report is in fact to a very large extend favourable to the applicant. The High Court added that the LPC said that the applicant attempted to place herself in an overly positive light minimizing faults and denying psychological problems. The High Court said that the psychologist made no categoric findings, but merely raised the possibility that there might be certain psychological difficulties. The High Court pointed out that in its view the positive aspects of the report substantially outweigh the few negative aspects highlighted by the LPC.

Some of these aspects, to mention a few, include the fact that:

• The applicant appeared relaxed throughout the session with the expert, was well groomed and kept and maintained appropriates eye contact throughout.
• Her attitude displayed enthusiasm and cooperation with the examiner and her mood appeared stable throughout.
• Her level of personal insight appeared to be good as evidenced by her ability to fully own and accept responsibility for her behaviour.
• She presented a picture of someone who is emotionally and psychologically adjusted and has been rehabilitated.

The High Court noted that, regarding the applicant’s decision to persist with the application despite the LPC’s request to the contrary, the LPC expressed the view that the ‘unjustifiable disregard by the Applicant of the Council … is untenable’. The court said that this was not a fair criticism of the applicant. The High Court added that the applicant was understandably emboldened by the recommendation of the PAC that she was indeed a fit and proper person and could be admitted. The High Court said that it was satisfied that the applicant was a fit and proper person to be admitted as a legal practitioner.

The court granted an order that the applicant be admitted as a legal practitioner of the High Court of South Africa in terms of s 24(2) of the Legal Practice Act 28 of 2014 as amended.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2024 (October) DR 37.