It is for a good reason that the legal profession has strict ethical rules to prevent malfeasance

November 1st, 2022
The South African Legal Practice Council v Teffo (GP) (unreported case no 10991/21, 16-9-2022) (Bokako AJ)

The Gauteng Division of the High Court has struck controversial legal practitioner Malesela Daniel Teffo (the respondent) off the roll, after the Legal Practice Council (LPC) (the applicant) brought the application to the High Court in accordance with the disciplinary procedures to adjudicate over his conduct, which was alleged to be unprofessional, dishonourable or unworthy as provided for in s 44(1) of the Legal Practice Act 28 of 2014 (the LPA).

The LPC, which is a statutory regulatory body regulating the legal profession, took the decision to launch an application for the striking off alternatively, suspension after a number of complaints, which it received against the respondent, as well as other irregularities concerning his practice. The court said that the purpose of the application, the LPC contended that actions of the respondent constitute deviation from the standards of professional conduct and that the respondent is not a fit and proper person to continue to practice as an advocate.

The LPC pointed out that some of the alleged offences the respondent committed, are as follows –

  • On 17 October 2019, the applicant received a complaint from the Provincial Commission of the South African Police Service (SAPS), which requested the applicant to embark on an urgent investigation into the respondents conduct. A copy of the complaint, together with its annexures were sent to the respondent.
  • The complaint outlines that on 27 September 2019, Moosa J ordered that the respondent’s conduct should be reported to the LPC as a matter of urgency, following that, on 4 October 2019, Fisher J granted an urgent interdict against the respondent in the Gauteng Local Division High Court on behalf of the SAPS and the State Attorney of Johannesburg.
  • On 20 August 2019, Ms Sindi Manitshana from the State Attorneys’ Office in Johannesburg was in the Labour Court (LC) attending to matter where she discovered that one of her matters that she was handling on behalf of SAPS, was on the unopposed roll before Rabkin-Naicker J. The respondent informed Ms Manitshana that it was a matter for the Office of the State Attorney in Pretoria. The respondent further made submissions to the court that there was an agreement between the parties that the matter would proceed unopposed. Ms Manitshana to her dismay requested the court to stand the matter down due to the opposed roll by Rabkin-Naicker J. Ms Manitshana perused the court file and discovered that the notice to oppose by the office of the Johannesburg State Attorney, as well as the answering affidavit by SAPS had been removed from the LC file.
  • The court pointed out that this was done with the intention of misleading the court and getting the matter back on the unopposed roll to secure a default judgment against SAPS. Ms Manitshana went back to court and brought the matter to the judge’s attention. The judge ordered the respondent and his attorney to file affidavits wherein they explain how the matter got placed on the unopposed roll again.
  • The respondent contravened s 37(2)(a) of the LPA in that he failed to cooperate with the LPC investigations against him. The respondent failed to reply to the correspondence sent to him by the LPC.
  • The respondent consulted with clients without acceptance of a brief from an attorney, instead, he accepted instructions directly from clients, thus contravening s 34(2)(a)(i) and para 27.2 of the Code of Conduct for all Legal Practitioners, Candidate Legal Practitioners and Juristic Entities.

The court said that the applicant submitted that the court will find that the applicant has made out a sufficient case to have the respondent struck off with immediate effect. The court added that the respondent, in his papers contended that on 19 May 2021 he received the applicant’s notice of the motion and the applicant called on him to answer to the allegations of being unfit and improper to practice as a legal practitioner, indicating that he must admit that he had difficulties in relation to understanding what was expected from him, insofar as his answering affidavit should be, due to the fact that the allegations were serious wild-hearsay he could not understand what informed the allegations as the person who had deposed the affidavit seemingly was deposing the affidavit on behalf of unknown complaints against him, however, he had to answer to the allegations as best as he could. In answering he denied all allegations levelled against him without any contra submissions or averments.

The court said that the respondent replied with a bare denial and further pleaded that certain allegations and matters are sub judice. The court added that the respondent further submitted in court that –

  • the application by the LPC is premised on the contentions that the LPC has violated the rules of natural justice by not affording him an opportunity to make representations before the disputed decisions were taken;
  • the LPC did not have the powers to make impugned decisions without first finalising the disciplinary proceedings;
  • the LPC failed to apply itself to the holistic legal framework regulating the disciplinary hearing process; and
  • the disputed allegations and decisions are unreasonable.

The court said that the respondent further contended that, he responded to the complaints by filling his answering affidavit in response thereto. The court added that it was clear the respondent’s grievance was that no formal disciplinary hearing was conducted by the LPC and that it would have been ideal for him that he should have been called for a proper disciplinary hearing and that the hearing conducted and concluded. The court added that the respondent was of a view that it was unfair and unjust that the LPC took the decision based on faceless complaints, hearsay allegations and the responses thereto. The court said that it was of the view that the respondent’s contentions were incorrect. That nothing expels the applicants from taking a decision based on the evidence in the form of affidavits.

The court said that the LPC submitted legal argument in that bare denials and sub judice pleas are not substantial, that the respondent wholly fails to plead with sufficient particularity and specify as required in terms of the Uniform Rules of Court. The court pointed out that the LPC said that accordingly, in terms of the rule as set out in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A), this application must be granted. Making reference to the salient decision of the SCA applies:

‘A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that the party who purports to raise the dispute has in his affidavit seriously and unambiguously addressed the fact said to be disputed. There will of course be instances where a bare denial meets the requirement because there is no other way open to the disputing party and nothing more can therefore be expected of him. But even that may not be sufficient if the fact averred lies purely within the knowledge of the averring party and no basis is laid for disputing the veracity or accuracy of the averment. When the facts averred are such that the disputing party must necessarily possess knowledge of them and be able to provide an answer (or countervailing evidence) if they be not true or accurate but, instead of doing so, rest his case on a bare or ambiguous denial the court will generally have difficulty in finding that the test is satisfied. I say “generally” because factual averments seldom stand apart from a broader matrix of circumstances all of which needs to be borne in mind when arriving at a decision. A litigant may not necessarily recognise or understand the nuances of a bare or general denial as against a real attempt to grapple with all the relevant factual allegations made by the other party. But when he signs the answering affidavit, he commits himself to its contents, inadequate as they may be, and will only in exceptional circumstances be permitted to disavow them. There is thus a serious duty imposed upon a legal adviser who settles an answering affidavit to ascertain and engage with facts which his client disputes and to reflect such disputes fully and accurately in the answering affidavit. If that does not happen it should come as no surprise that the court takes a robust view of the matter’ (Wightman t/a JW Construction v Headfour (Pty) Ltd and Another 2008 (3) SA 371 (SCA) at para 13).

The applicant referred to a pertinent decision of the SCA in that: ‘Advocates are required to be of complete honesty, reliability and integrity. The need for absolute honesty and integrity applies both in relation to the duties owed to their clients as well as to the courts. The profession has strict ethical rules to prevent malfeasance. This is for good reason. As officers of the court, advocates serve a necessary role in the proper administration of justice. Given the unique position that they occupy, the profession has strict ethical rules.’

The court said it is of a view that the rules of natural justice were observed by the LPC in its instance because the respondent seized the opportunity to answer to the complaints by filling answering affidavits in response thereto. The audi alteram partem principle was adhered to. The court in its exercise of discretion, having consider the facts in their totality and having heard submissions of both parties, found that the respondent’s acts of misconduct were serious and dishonest. The court pointed out that it was mindful that the main consideration was the protection of the public.

The court said that the respondent was admitted as an advocate in 2009. The court added that given his years of experience, he is required to be completely honest and reliable and perform with integrity. That the need for absolute honesty and integrity applies both in the relation to the duties owed to their clients as well as the courts. The court said that the legal profession has strict ethical rules to prevent malfeasance. The court pointed out that it is for a good reason. And as officers of court, advocates serve a necessary role in the proper administration of justice. Given the unique position that they occupy, the profession has strict ethical rules.

The court said that the respondent as a legal practitioner should have concentrated in fulfilling a dual function by assisting his clients on the one hand and by promoting justice in society on the other hand. The court pointed out that the respondent had no absolute regard for justice.

Some of the orders the court made in the premises were as follows:

  • The respondent, advocate Malesela Daniel Teffo, is hereby removed from the roll of legal practitioners.
  • The respondent must surrender and deliver his certificate of enrolment as a legal practitioner to the Registrar of this court.
  • In the event of the respondent failing to comply with the terms of this order detailed in para 2 above within two weeks from the date of this order, the Sheriff of the district in which the certificate is, be authorised and directed to take possession of the certificate and hand it to the Registrar of this court.
  • The respondent is prohibited from handling or operating on his banking accounts, used in receiving monies for clients (referred to herein as creditors).
  • The respondent be and is hereby removed from office as:
  • executor of any estate of which the respondent has been appointed in terms of s 54(1)(a)(v) of the Administration of Estates Act 66 of 1965 or the estate of any other person’s referred to in s 72(1);
  • curator or guardian of any minor or other person’s property in terms of s 72(1) read with s 54(1)(a)(v) and s 85;
  • trustee of any insolvent estate in terms of s 59 of the Insolvency Act 24 of 1936;
  • liquidator of any company in terms of s 379(2) read with 379(1)(e) of the Companies Act 61 of 1973 and together with the provisions of the Companies Act 71 of 2008;
  • trustee of any trust in terms of s 20(1) of the Trust Property Control Act 57 of 1988;
  • liquidator or any close corporation appointed in terms of s 74 of the Close Corporations Act 69 of 1984; and
  • administrator appointed in terms s 74 of the Magistrates’ Courts Act 32 of 1944.

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

This article was first published in De Rebus in 2022 (Nov) DR 28.