In a critical ruling for the legal profession, the Supreme Court of Appeal (SCA) of South Africa issued a strong caution to attorneys who allege bad faith or ulterior motives on the part of the Legal Practice Council (LPC) during disciplinary proceedings. The case of Legal Practice Council v Kgaphola and Another serves as an important reminder of the ethical obligations legal practitioners owe to their regulatory body and the judiciary.
Postponement Requests Must Be Justified
The dispute arose from an appeal against a decision by the Gauteng Division of the High Court, which had dismissed the LPC’s application to strike Mr Kgaphola from the roll of attorneys or suspend him from legal practice. At the hearing before the SCA, Mr Kgaphola’s legal representative requested a postponement based on the absence of a transcript from the initial hearing. However, the application was not made on notice, and no substantive affidavit was filed.
The SCA reiterated that postponements are discretionary and not granted as a matter of right. Legal practitioners must demonstrate compelling reasons and act promptly when seeking such indulgences. In this case, the Court held that Mr Kgaphola had provided no valid explanation for his failure to secure the transcript earlier or to engage with the LPC to supplement the appeal record. The Court accordingly dismissed the request and imposed a punitive costs order.
Attorney’s Conduct Under Scrutiny
Mr Kgaphola had been admitted as an attorney in August 2020 and opened his own law practice soon thereafter. The LPC requested standard documentation, including trust account details, as a prerequisite to issuing a Fidelity Fund Certificate, a requirement for practicing attorneys. Despite reminders, Mr Kgaphola did not comply. He was later issued a certificate, which the LPC subsequently withdrew when it emerged that the mandatory auditor’s report had not been submitted.
Despite this, Mr Kgaphola continued to practise. The LPC lodged an application for his removal or suspension, citing multiple breaches of professional rules. The High Court, however, found insufficient evidence to support the LPC’s claim that he had practised unlawfully and dismissed the application. This prompted the LPC to appeal to the SCA.
SCA Clarifies the Three-Tier Test for Legal Misconduct
The SCA emphasised that disciplinary proceedings against legal practitioners follow a structured three-stage process:
- A factual inquiry to determine whether misconduct occurred on a balance of probabilities;
- An assessment of whether the attorney remains fit and proper to practise;
- A determination of the appropriate sanction if the attorney is found to be unfit or guilty of misconduct.
The SCA found that the High Court had materially misdirected itself by failing to properly investigate all the LPC’s complaints and by relying on irrelevant considerations in reaching its conclusion. The appellate court undertook its own analysis and found the LPC’s allegations proven.
Key Findings Against Mr Kgaphola
The SCA confirmed that Mr Kgaphola had:
- Practised law without a valid Fidelity Fund Certificate;
- Failed to register his practice with the Financial Intelligence Centre (FIC) within 90 days as required;
- Delayed notifying the LPC of his trust account and failed to open it within the correct jurisdiction;
- Neglected to pay membership fees on time;
- Ignored repeated correspondence from the LPC, violating multiple provisions of the LPC Code of Conduct.
Practising without a Fidelity Fund Certificate constitutes a criminal offence and a serious breach of legal ethics. Failing to respond to the LPC’s correspondence was also found to be a grave infraction undermining the integrity of the profession.
Improper Accusations Against the LPC
Rather than addressing the allegations substantively, Mr Kgaphola accused the LPC of dishonesty and of acting with malicious intent. The SCA condemned this conduct as unprofessional, warning that such baseless allegations against regulatory bodies could soon justify suspension or striking-off in and of themselves. The Court stressed that legal practitioners must engage with the disciplinary process in good faith and avoid confrontational tactics that question the legitimacy of the LPC without evidence.
Nature of Misconduct Proceedings Reaffirmed
The SCA reiterated that professional disciplinary proceedings are sui generis, they are not civil or criminal in nature. The LPC acts not as a litigant but as a custodian of ethical standards, assisting the court in determining whether a practitioner remains suitable to practise. Attorneys are expected to cooperate, disclose relevant facts, and act with integrity during such proceedings.
Sanction Imposed
While the SCA found Mr Kgaphola’s conduct serious, it stopped short of ordering his removal from the roll. Instead, it imposed a 12-month suspension, wholly suspended on condition that he avoids any further breaches of the Legal Practice Act, LPC Rules, or the LPC Code of Conduct during that period.
Conclusion
The SCA allowed the appeal and set aside the High Court’s decision, awarding costs against Mr Kgaphola on the attorney-and-client scale. The judgment affirms that ethical compliance and professional courtesy are non-negotiable expectations of legal practitioners in South Africa. Misconduct proceedings must be approached with candour and respect, not hostility and unfounded allegations.
