A person who has previously been removed from or struck off the roll of legal practitioners on the grounds that he or she was not a fit and proper person to continue practicing may apply to the High Court to be reinstated. The person who applies for readmission must, apart from satisfying all the other requirements set out in the Legal Practice Act 28 of 2014 (the LPA), demonstrate and convince the court that they are a fit and proper person to be readmitted and enrolled as a legal practitioner. This article will focus mainly on the requirement of being a fit and proper person.
The LPA regulates all matters relating to legal practitioners, including admissions and readmissions as legal practitioners. Section 15(3) of the Attorneys Act 53 of 1979, the precursor to the current LPA, had specific provisions dealing with readmissions. The LPA only refers to admissions and does not have express provisions regulating the readmission of persons who have previously been removed from or struck off the roll. Section 24(2)(c) of this Act provides that the High Court must admit to practice and authorise to be enrolled as a legal practitioner any person who, on application, satisfies the court that he or she is a fit and proper person to be so admitted. It is, however, accepted that the provisions of s 24 should be construed as also regulating applications for readmission. The court has a discretion to decide whether an applicant is a fit and proper person to be readmitted as a legal practitioner.
As discussed in the preceding paragraph, a person who applies for readmission either as an attorney or advocate must satisfy the court that they are a fit and proper person to be so readmitted. This requirement is in addition to the requirements set out in ss 24 and 26 of the LPA and applies both to persons who apply to be admitted for the first time as legal practitioners and to those who apply for readmission. The onus is on the applicant to convince the court, on a balance of probabilities, that they are a fit and proper person to be readmitted. In Kudo v Cape Law Society 1972 (4) SA 342 (C) at 345 the court stated that in considering whether the applicant has discharged the onus of convincing the court that he or she is a fit and proper person, ‘the court will have regard to the nature and degree of the conduct which occasioned applicant’s removal from the roll, to the explanation, if any, afforded by him for such conduct which might, inter alia, mitigate or even perhaps aggravate the heinousness of his offence, … to the lapse of time between his removal and his application for reinstatement; … to the expression of contrition by him and its genuineness, and to his efforts at repairing the harm which his conduct may have occasioned to others’. It follows, therefore, that where the applicant was removed from the roll of legal practitioners as a result of theft of trust funds, failure by him or her to repay the stolen funds prior to launching the application for readmission would limit his or her chances of successfully applying for readmission. Where the Legal Practitioners’ Fidelity Fund (the LPFF) pays claims in terms of s 55 of the LPA to the applicant’s erstwhile clients, the LPFF is subrogated in terms of s 80 to all the rights and legal remedies of the claimant against any practitioner or person in relation to whom the claim arose, or in the event of their death or insolvency or other disability, against any person having authority to administer their estate. The LPFF steps into the shoes of the claimants and exercises all the rights and remedies, which are normally accorded to the claimants. Failure by the applicant to pay the LPFF will certainly have an adverse effect on the applicant’s application for readmission. Where the applicant has failed to repay the stolen funds, it would be difficult to see how they can be considered to be a fit and proper person as they would have failed to repair the harm, which their conduct may have occasioned to the LPFF or their erstwhile clients. In Lethlaka v Law Society of the Northern Provinces (GP) (unreported case no 54065/2012, 11-11-2014) (Rabie J and Mojuto AJ) the court dismissed the applicant’s application for readmission with costs on the grounds, inter alia, that the applicant failed to pay the Law Society’s taxed costs relating to the application for his striking off. The court also stated that: ‘The applicant’s laconic remark that he would pay the Law Society’s costs once he is readmitted as an attorney, falls far short of what is expected of an attorney’ (Lethlaka at para 34).
In Law Society, Transvaal v Behrman 1981 (4) SA 538 (A) at 557B-D, Corbett JA emphasised that the person seeking readmission must show that: ‘There has been a genuine, complete and permanent reformation on his part’. The applicant must demonstrate that: ‘The defect of character or attitude which led to his being adjudged not fit and proper no longer exists; and that, if he is readmitted, he will in future conduct himself as an honourable member of the profession’ (Behrman at para 26). There is, however, no guarantee that a person who has been certified to be fit and proper to be readmitted as a legal practitioner will in future conduct themselves as an honourable member of the profession. Slabbert bemoans the fact that legal practitioners ‘who have been described as “fit and proper” do not always act in such manner’ (M Slabbert ‘The requirement of being a “fit and proper” person for the legal profession’ (2011) 14 PER 209). She argues that: ‘the “fit and proper” person test does not succeed in keeping unwanted elements out of the legal profession. It is also no guarantee of moral goodness’ (Slabbert (op cit) at 225). Slabbert’s argument is tenable in view of the fact that there are known cases of legal practitioners who were previously struck off the roll on two or more occasions. In South African Legal Practice Council v Mangolela and Another (GP) (unreported case no 91612/2021, 23-11-2022) (Mogale AJ and Jansen Van Niewenhuizen J), the LPC brought an application to have Mr Mangolela struck off the roll of legal practitioners for the second time. He was initially admitted as an attorney on 30 January 2001. He was struck off on 13 February 2006 and was subsequently readmitted as an attorney on 4 December 2015. In this case it was found that he overreached his clients, had substantial trust deficits in his bookkeeping, delayed the payment of trust funds, failed to respond to correspondence and that he placed his trust creditors and the LPFF at risk. The court found that the respondent had been dishonest, that he had shown a lack of integrity and openness and had shown no insight into the extent of his transgressions. The court remarked that these are character traits which an attorney should not have. He was struck off the roll for the second time on 23 November 2022.
An applicant who has a previous conviction or a pending criminal case against him or her, whether in relation to the theft of trust funds or any other serious criminal offence, should not be considered to be a fit and proper person to be admitted or readmitted as a legal practitioner. In Thukwane v Law Society, Northern Provinces 2014 (5) SA 513 (GP), the applicant sought to review the Law Society’s decision not to register his articles of clerkship on the grounds that he was not a fit and proper person because he had been convicted of murder, robbery and the illegal possession of a firearm and was still on parole. The court held that since the purpose of the registration of articles was to allow an applicant to enter the attorneys’ profession, the expression ‘fit and proper’ had to be given the meaning attributed to it in cases dealing with the admission, striking off and readmission of attorneys. In view of the aforegoing, the Law Society had to be convinced that the applicant possessed the characteristics of integrity, reliability and honesty required of attorneys. In this case the serious nature of the applicant’s crimes militated against such a conclusion. Furthermore, the applicant had failed to show genuine and permanent reformation. The Law Society’s decision not to register the applicant’s articles was upheld by the court.
The expression ‘fit and proper person’ although not defined in the legislation, constitutes an important criterion for the admission, readmission and removal from the roll of legal practitioners. The onus is on the applicant to convince the court on a balance of probabilities, that he or she is a fit and proper person to be readmitted. There is, however, no guarantee that a person who has been declared fit and proper will in future conduct himself or herself as an honourable member of the profession. Since there is a real possibility that a person who has been readmitted on the grounds that they are fit and proper can again conduct themselves in a dishonourable manner as in Mangolela it is important that the requirements for readmission as legal practitioners should be made more stringent.
John Ndlovu BIur (UniZulu) LLB (UP) Masters Cert (Labour Relations Management) (UJ) is a Senior Legal Adviser at the Prosecutions Unit of the Legal Practitioners’ Fidelity Fund in Centurion.
This article was first published in De Rebus in 2023 (Nov) DR 7.
