Jokes about lawyers overcharging their clients and being generally dishonest are legion. I have yet to go to a party where I didn’t hear at least one joke about lawyers stealing their clients’ money or lying to court.
But no-one who watched the recent edition of Carte Blanche about Eastern Cape attorney Zuko Nonxuba, who conned his clients out of R110m, could be amused. The fact that his victims are poor, rural children with cerebral palsy and their families makes it one of the worst excesses in this country’s legal history.
To add insult to injury, the Legal Practice Council (LPC), as watchdog of the legal profession, has done precious little to address the issue in recent years. It was cringeworthy to watch LPC spokesperson Kabelo Letebele being interviewed on Carte Blanche. He clearly had no idea, and frankly made the LPC look downright incompetent.
The fact that the LPC sent such an uninformed person to be interviewed on a programme with the reach of Carte Blanche indicates that it either has no idea of the magnitude of Nonxuba’s wrongdoing or, if it does, just couldn’t care less. Why did the LPC not send its president, Janine Myburgh (no relation of mine), to be interviewed by Carte Blanche, considering the seriousness of the alleged transgressions?
As a legal practitioner I feel compelled to add my voice to the growing outrage about the failure of the LPC in this and other matters. Since it replaced the former provincial law societies the annual dues have tripled, including recently “marginally” (the word it used) increasing the annual amount by 15% (almost double the official inflation rate).
If a legal practitioner fails to pay the now almost R5,000 annual amount they are threatened with disciplinary action. But if legal practitioners overcharge unsophisticated clients who put their faith in a legal practitioner to obtain justice, to the tune of hundreds of millions of rand, the LPC is absent.
After what I saw on Carte Blanche I wouldn’t blame any less-than-honest legal practitioner for thinking the chances of being taken to task for any wrongdoing (such as theft of trust money) are so slim that it is worth the risk. Besides, if you do get caught you can just use the now notorious “Stalingrad tactic” to evade accountability indefinitely.
The state of the legal profession in SA is now at such a low point, and the quality of new admissions so dubious, that the LPC requires applicants to attach police clearance certificates to their applications to confirm that they do not have criminal records. It’s almost as if applicants to the legal profession are presumed not to be fit and proper to be admitted as legal practitioners until they prove the contrary.
That is a most damning indictment not just of the legal profession but of SA society as a whole. But it is hardly a surprise when one considers that the role models for potential legal practitioners nowadays are advocates such as disgraced former public protector Busisiwe Mkhwebane and Dali Mpofu, who has used the Stalingrad strategy to great effect in former president Jacob Zuma’s ongoing legal disputes, thereby ensuring that his client has yet to face the serious criminal charges that have been brought against him.
There are other examples that have apparently made it fashionable for legal practitioners to disregard the rules of court, fail to show respect for the courts and judges, and even to blatantly ignore the law itself. With the LPC failing to perform its role as guardian of the legal profession, the courts have had to take on the role of guardian and gatekeeper of the profession.
In two recent applications for admission as legal practitioners the applicants, whose applications were signed off by the LPC, were refused admission by the court because they were in essence not fit and proper candidates. In the matter of Siyabonga Galela, the applicant could not produce the required LLB (bachelor of laws) certificate because she still owed the University of Witwatersrand money.
The court took her to task for failing to explain why she didn’t pay the university, or whether she had made any payment arrangements. Galela also held directorships in companies while doing her vocational training, without the required consent of the LPC, and failed to explain this in her admission application.
In her case, and that of Maggie Mpholefole, who also applied to be admitted as an attorney, the failures listed by the judges — apparently ignored by the LPC — are numerous. In dismissing both applicants’ applications for admission the court severely criticised the LPC. Quoting from the judgment: “The LPC was of the view that it had no objection to the admissions of the applicants as legal practitioners. As the conduct of the applicants in our opinion contain[s] an element of impropriety, the stance of the LPC is a matter of concern.”
Another example of the brazen disrespect some legal practitioners show for the courts is the case of Senzo Wiseman Mkhize, an advocate whose many transgressions include falsely holding himself out as senior counsel. No-one can just call themselves senior counsel because they feel like it. It is a privilege conferred to the most deserving advocates by the president on the recommendation of the general council of the bar. Yet even when confronted by the court about his misrepresentation, Mkhize insisted he was senior counsel. To the LPC’s credit it did eventually succeed in having Mkhize removed from the roll of advocates.
The courts’ newfound assertiveness in dealing with rogue practitioners while the LPC is missing in action — even preventing their admissions before they can cause trouble — is refreshing. If the LPC is to salvage what is left of its image, and that of the legal profession as a whole, it will need to start acting in a more professional manner and deal decisively with errant practitioners.
• Myburgh is an attorney practising in Johannesburg and São Paulo.
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