South African Legal Practice Council v Halles and Another (GP) (unreported case no 35117/2022, 5-6-2024) (Davis J, Mooki J and Matthys AJ)

The Gauteng Division of the High Court in Pretoria ruled that a legal practitioner be suspended from practise until she satisfies the court that she is a fit and proper person to practice with specific reference to her diagnosed mental health disorder. This was after the Legal Practice Council (LPC) (the applicant) brought an application to adjudicate upon the conduct of Judy Maseeiso Halles (first respondent) in her capacity as a legal practitioner enrolled as an attorney.

The matter was heard in a Full Court on 18 April 2024. The High Court pointed out that the applicant approached it as provided for in s 44(1) of the Legal Practice Act 28 of 2014. The second responded, Joubert Renier Francois Inc, was a law firm where the first responded served as a director before resigning. It did not participate in the proceedings and was erroneously cited.

The High Court explained that the first part of the matter was dealt with on 20 April 2023, when an interim order was granted suspending the first respondent from practice as a legal practitioner, pending the final determination of the second part of the application, calling on the first respondent to show cause, why she should not be struck off the roll. The High Court noted the first responded obtained her LLB in 2008, and at the age of 31 served her articles with AF Van Wyk Attorneys. She was admitted as an attorney on 1 November 2013.

The High Court pointed out that during 2016, while working as a professional assistant, her father (with whom she shared a close relationship) was diagnosed with lung cancer. The High Court added that at the time, she had to support her mother emotionally and she took it upon herself, to attend to her father’s daily care, including transporting him to radiology centre, where he received treatment until his death in 2017. The High Court said that it is not in issue that her father’s death went along with revelations of sensitive family secrets, which occasioned stress to the first respondent.

The High Court pointed out that in 2018 the first respondent took up the position as an associate in the second respondent firm of attorneys. The High Court said that the first respondent sat for the conveyancing examination but failed. The High Court added that she took up a directorship in the second respondent. As a director, she practiced for the first time, for her own account. And it was therefore required of her, to pass the compulsory Practice Management Training Course (PMTC), to which she passed one of the three subjects towards the course during 2019 and the LPC granted her an extension to complete the remaining subjects by the end of December 2020.

The High Court said that the first respondent was issued with the Fidelity Fund Certificate (FFC) for the year 2020. She resigned from the second respondent and opened her own practice under the name and style Judy Maseeiso Halles Incorporated. The High Court pointed out that the first respondent admitted that she did not update her practice details in the LPC records, as was expected. The first respondent’s evidence went unchallenged, to the extent that she registered for the outstanding two subjects to complete the PMTC in 2021, however, she aborted studying, due to lack of motivation.

The High Court pointed out that the first respondent explained that since 2021 her life took a downward spiral, evidenced by the fact that she infrequently got out of bed; rarely attended to her office, moved her client files from her office to her bedroom; did minimum work and no longer attended to her practice and regular duties as an attorney. The High Court added that the first respondent also revealed that she also fell behind financially and had to borrow money. The respondent added that around mid-2022 and while she was in a state of ambivalence, she received word of the application against her by the LPC. The High Court said that the first respondent did not challenge the LPC’s indictment against her. The first respondent conceded that she did not qualify for nor held a FFC from 1 January 2021 until her suspension on 20 April 2023.

The High Court pointed out that the evidence was that in February 2023 the first respondent’s erstwhile employer/principal Mr AF Van Wyk referred her to a psychiatrist Dr Biagio Longano. She consulted the psychiatrist as per the contents of his report. The High Court said that the contents and the correctness of the psychiatrist report were not an issue. The High Court added that having assessed the first respondent’s psychological and emotional state the psychiatrist made the diagnosis that the first respondent is suffering from a major depressive disorder. The High Court said that Dr Longano asserted that at his first consultation with the first respondent, the major depressive disorder was self-evident. She exhibited classical features of anhedonia, anergia, low mood, a degree of impairment of executive functioning and obvious social and occupational dysfunction.

The High Court added that Dr Longano held forth, that regard being had to the first respondent’s historical background, he would not have considered her a typical candidate for a depressive illness. Nonetheless, he made the working hypothesis that she was majorly affected by her father’s premature death. The High Court also pointed out that Dr Longano also expressed the view that the first respondent’s career path seems to have deviated from its intended trajectory due to the universal career-impending effects of the COVID-19 pandemic.

The High Court said that the first responded using the medication prescribed by Dr Longano, she continued to suffer that same depressive symptom. She then, upon advice, consulted with Clinical Neuropsychologist Ms Annelies Cramer on 19 October 2023. The High Court said that Ms Cramer confirmed the diagnosis made by Dr Longano as major depressive disorder as per her report. The High Court pointed out that Ms Cramer proposed that regard be had to the first respondent’s psychological condition when her ability to meet her responsibility as a legal practitioner is assessed.

The High Court said that it was not disputed that the first respondent had not done significant work since 2021 and her averment went unchallenged, to the extent that all the legal services which she rendered were performed on a ‘work now pay later’ basis. The High Court added that the LPC during argument, abandoned their contention that the first respondents practised after she was suspended on 20 April 2023. Furthermore, the LPC had not received any complaints from clients or other members of the public against the first respondent.

The High Court said that the first respondent has far as possible, made efforts to remedy the infractions. The High Court pointed out that she provided documentary proof that she brought her LPC membership fees up to date. She once again registered for the 2024 PMTC in an endeavour to complete the outstanding two modules. The High Court said that it was an issue that her client files and trust account bank details are in possession of the LPC. The High Court added that although the first respondent’s non-compliance for a FFC placed her client’s interest at risk, there was no evidence on record that actual prejudice resulted.

The High Court referred to Jasat v Natal Law Society [2000] 2 All SA 310 (A) where the Supreme Court of Appeal held that a three-stage enquiry is envisaged in applications of this nature. First the court is required to make factual findings as to whether the alleged offending conduct has been established on a balance of probabilities. Secondly, decide whether in the discretion of the court, the person concerned, is a fit and proper person to continue to practice. The exercise of this discretion involves a weighing up of the conduct complained of, against the conduct expected of the legal practitioner. Thirdly, the court must decide whether in all the circumstances, the name of the person in question should be removed from the roll of legal practitioners or whether a suspension will suffice. The High Court pointed out that concerning the most appropriate sanction, based on the unique facts of the case, regard should be had to –

• the nature of the conduct complained of;
• the extent to which the offending conduct reflects upon the person’s character and worth to remain within the ranks of the legal profession;
• the likelihood of a repetition of the conduct complained of; and
• the protection of the public against unprofessional conduct by the legal practitioners.

The High Court said that there was no lis between the parties regarding the conduct complained of by the LPC. The High Court pointed out that the first respondent confessed her transgressions. She humbled herself before the court and the authority of the LPC and explained the breaches in a forthright manner. The High Court added that based on available evidence, it found that the conduct complained of was established. The High Court said that generally, it is expected of the legal practitioners to conduct themselves with the highest degree of integrity, honor and propriety. The High Court, however, said that legal practitioners are more than anything else, human beings. That the pressure demands associated with the practice of law, including the maintenance of the personae of a fit and proper person, worthy of the profession, should not be underrated.

The High Court said that in some instance, the impact of stressors may become overwhelming to the person, who may not have the knowledge and skills to identify the symptoms, of a possible psychological breakdown. The High Court added that in context of the emotional and psychological well-being of legal practitioners, the use of terms such as ‘burnout’, stressed, depressed or ‘Professional Paralysis’ are not uncommon. The High Court said that the eminence in which members of the legal profession are generally viewed, inevitably comes with societal stigmatization under circumstances where practitioners do not live up to standard, albeit due to psychological ill health.

The High Court pointed out that logically, the stigma surrounding mental health conditions suffered by legal professionals, adds to anxiety feelings manifesting depression, nor to take time off, dreading judgement from colleagues or clients. The High Court said that there can be no doubt that in the context of the fit and proper requirement, mental health issues suffered by legal practitioners are great consequence. The High Court added that legal practitioners (as all persons) with a mental illness or who are being treated as such persons, are required to be treated with humanity and respect for their inherent dignity.

The High Court said that a culture within the legal fraternity, where open dialogue (without fear of stigmatization) about mental health issues is encouraged, can only serve the common good of the profession and the interest of the public at large. The High Court added that in the case of the legal profession, which is regulated by the LPC, there is a need for a dedicated and confidential reporting policy process facilitated by the LPC, in terms of which legal practitioners experiencing mental health issues (that may place them at risk of not attending to professional affairs) may report to the LPC and be assisted and directed fittingly.

The High Court pointed out that two psychology expert witnesses diagnosed the first respondent with major depressive disorder. The High Court said that both Dr Longano and Ms Cramer, explained that the major depressive disorder suffered by the first respondent, as a delayed response which was triggered, by her psychological regression over the years following her father’s death in 2017, combined stressors relating to her career trajectory and responsibilities. The High Court considered the respondents background, in particular her school achievements and her rise as an admitted attorney and found the reported state of lethargy experienced by her, the loss of interest in work related and other life activities, to be rather out of character. The High Court said that the cause of the first respondent’s resignation from the second respondent in 2020 is not known from the available evidence, however, it is common knowledge as stated in the expert reports, that during the year 2020 the world including South Africa, endured the unprecedented Covid-19 pandemic, with its concomitant career-impeding impact.

The High Court pointed out that on a balance of probabilities, it found that the stressful personal and professional circumstances in which the first respondent found herself between 2016 and 2021, together with the symptoms of depression, weighed by the experts are in harmony with her having functioned under a depressive psychological state, long before the diagnosis of major depressive disorder. The High Court said that the requirement for legal practitioners to be fit and proper persons is not defined in the relevant legislative instruments. The High Court added that still the type of ‘character screening’ remains a stringent requirement.

The High Court pointed out that it accepts the opinion proffered by the two experts, asserting that the first respondent holds good future prospects of regaining her psychological well-being, to return to a functional state in her personal life. The High Court said that in the main the LPC prayed for the court to strike the first respondent’s name off the roll of legal practitioners, the High Court, however, said that before imposing a severe penalty of striking, the court must be satisfied with a lesser sanction of suspension. The High Court pointed out that this was the first complaint against the first respondent. And as reported by the psychologist, the first respondent expressed an appreciation for her to submit to the recommended treatment.

The High Court added that the first respondent has the desire to recover to her previous level of functioning. That she took the court into her confidence and presented her case with a positive attitude, which makes her future recovery realistic. The High Court pointed out that notably, there is no provision for a dedicated and confidential reporting policy process, in terms of which legal practitioners (like the first respondent) afflicted with mental health issues are allowed to report to the LPC in its capacity as regulatory body, for assistance and direction.

The High Court said that the evidence proved that the first respondent continues to suffer under the major depressive disorder, and it may well be said that this is not the type of case, which justified the approach adopted by the LPC. The High Court added that it was for those reasons that it found merit in deviating from the usual order made in this type of application. The High Court proposed the following order to issue:

‘1. The first respondent is suspended from practice as a legal practitioner until she –

(a) satisfies the court that she is a fit and proper person to practice, with specific reference to her diagnosed mental health disorder;

(b) to the satisfaction of the LPC submit all past outstanding audit reports (if any);

(c) completes the Practice Management training course, in the event that she intends to practice for her own account;

(d) complies with all other regulatory requirements not mentioned herein, to the satisfaction of the LPC.

2. No order as to costs.
3. A copy of this judgment is to be furnished to the Chairperson of the South African Legal Practice Council by the Registrar of this court within 5 days from date hereof, for consideration by the Council.’

• See Emmie de Kock ‘Prioritising mental health in the legal profession’ 2024 (Sept) DR 18.

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 (September) DR 38.