JUDITH FEBRUARY: The Legal Practice Council's lack of leadership is a threat to the rule of law

The Legal Practice Council (LPC) is a statutory body which, together with its provincial councils, regulates the affairs of and exercises jurisdiction over all legal practitioners (attorneys and advocates), both practising and non-practising and candidate legal practitioners.

The establishment of the LPC was not, however, without controversy. 

So, when the CEO of the LPC, Charity Nzuza made headlines last week, it did not augur well. There have been raised eyebrows from attorneys and advocates alike, but very little by way of an official response from the profession. 

The profession, like so many other areas of South African public life, is divided. 

Having said that, concerns about the LPC have been swirling for a while, not least because of the haphazard (perhaps a generous interpretation) manner it has often dealt with disciplinary matters against errant practitioners.

There is a litany of inexplicable decisions by the LPC where attorneys have been let off the hook for a range of offences, including the misappropriation of trust monies.

There has also been a laxity in dealing with practitioners who display a lack of decorum or act inappropriately in court.

In a more well-publicised incident, Dali Mpofu addressed his fellow counsel, Michelle Le Roux, while she was leading former minister Pravin Gordhan in his evidence during the Zondo Commission as follows: ‘“Chair, I am on the floor. Really, I can’t stand this. This cannot be happening for the third time. Miss Le Roux must shut up when I am speaking.”

Incredibly, the LPC cleared Mpofu of misconduct on the most absurd grounds. It held that “He (Mpofu) had told the committee that English is his second language. If he had been allowed to use his mother tongue, isiXhosa, he would've said thula (shut up) or vala umlomo (close mouth), both of which are acceptable expressions to ask another person to keep quiet." 

The failure to act against Mpofu provides a licence to others in the profession to treat presiding judges and colleagues with similar levels of contempt. In October, a group of retired judges expressed concern about the lack of respect towards judicial officers coupled with a general lack of decorum.

On serious issues of malfeasance and allegations of criminality, the LPC has shown little leadership, with several grifters in practice. Needless to say, it represents a threat to the rule of law if those who are meant to uphold the law break it and it has a cascading effect on the courts and on the pool of individuals who may eventually rise to become judges.  

Several of these matters have been well-documented in the media. Ashley Youngman was finally struck off the roll of legal practitioners. In the judgment, however, the court was scathing of the role of the LPC.  Judge Mooki said the LPC’s response to the complaints was “perfunctory and fell short of what is expected of the LPC as a regulator of the profession”.

Recently, the legal ombud, Judge Siraj Desai raised similar alarm about the LPC. As GroundUp reported, "The Legal Services Ombud has castigated the Legal Practice Council (LPC) for failing to act in the public interest and contributing to an injustice."

It goes on to say that, "…Desai released a report into an investigation carried out by his office into the Legal Practice Council (LPC) and its investigation into the financial affairs of attorneys Schumann Van Den Heever & Slabbert Inc (Schumanns) in Kempton Park, Gauteng."

The Ombud’s report is damning of not only the LPC, but also the members of the disciplinary committee and pro forma prosecutor Kholofelo Masedi, noting that none had investigated the complaint. The report pointed out that the very purpose of a process of adjudication was to determine who was right and who was wrong, a process which the disciplinary committee had ignored.

The Road Accident Fund (RAF) too had pledged its cooperation in the disciplinary process, but was not called to present its evidence.

On the issue of the public perception of the legal profession, the report states: “The delay by the LPC in bringing an application to suspend or remove [Jakkie] Supra from the roll of legal practitioners (attorneys) shows how little regard the LPC has for protecting the public interest. The LPC in allowing the continued practise of a legal practitioner with such egregious allegations against him is one of the very reasons the legislature saw it fit to establish an oversight body such as the Ombud. It is to hold the LPC to account for what may be perceived by the public as protecting its kith and kin.”

So, when allegations broke this week that Nzuza herself had allegedly objected to lifestyle audits at the LPC and has repeatedly engaged in spending sprees which have little to do with actually running the Council, could anyone have been surprised? Because sadly we have reached the point where the LPC itself now has very little credibility. 

In a response to News24 regarding allegations of spending sprees, including on embroidered bathrobes for staff, Nzuza replied with the arrogance borne of defensiveness, while claiming the body did not have the money to pay for forensic investigations.

“If there is anything I am guilty of, it's trying by all means to look after the well-being of my staff, taking into consideration the enormous toll of the regulatory work that the LPC is required to do,” Nzuza told News24.

“If I spent R12 000 – on ice-cream for the 120 Pretoria staff who deal with the biggest chunk of legal practitioners and complaints from the public – ‘and R8 000 for national offices, then let this be my crime.” (sic) 

Let this be her crime. Ice cream! Embroidered bath-robes!

The Legal Ombud is now seized with the whistleblower’s report. In the meantime, Nzuza seems to be fighting back. At a time when the administration of justice is facing serious pressure, the LPC needs to be fit for purpose. Having a dysfunctional body regulate the affairs of the legal profession is clearly untenable, as is Nzuza’s position - even on the face of it.

Can the LPC really be fit for purpose? 

The new LPC chairperson, Pule Seleka, said in a statement to News24, ‘‘The contents of the report are noted and will be carefully studied to determine the appropriate course of action. As a newly constituted council, which assumed office on 1 November 2024, we are acutely aware of the many challenges facing both the LPC and the legal profession. We are committed to addressing these issues with diligence, integrity and transparency to ensure the effective regulation of the profession and the protection of the public interest.”

After stating that the LPC had reaffirmed its “unwavering commitment to upholding the highest standards of ethics, accountability and governance within the legal profession”, Seleka said, “any matters raised in the report requiring intervention will be addressed promptly and decisively as part of our mandate to restore trust and confidence in the LPC”.

The Chair of the Justice and Constitutional Development portfolio, Xola Nqola, also weighed in (sort of).

In an opinion piece online, Nqola set out the purpose of the LPC and Act which gives it life: “With this piece of legislation, the government sought to provide a legislative framework to transform and restructure the legal profession in line with constitutional imperatives. The aim was to improve the independence of the legal profession and restructure it to broadly reflect the diversity and demographics of the country.”

“The Act also provides for a single South African Legal Practice Council and provincial councils that must regulate the affairs of legal practitioners, set norms and standards, and regulate professional conduct to ensure accountability.”

He pointed to the recent Parliamentary briefing by the Legal Ombud and the LPC, which detailed a litany of misappropriation of funds, as well as unpaid practitioner levies to the tune of R157 million.

Nqola highlights the need to “amend legislation to give the LPC more bite. And, if we need a new funding model for the LPC, we will have to consider that. But we need regulations in the meantime. That is the first step in this effort to restore the integrity of the profession, which will also safeguard our people.”

Unfortunately, though, if the allegations of maladministration at the LPC are true and if it cannot get its own house in order and its CEO operates under a cloud, then any amendment of legislation will be a lost cause.

We need to ask ourselves, why it is that our institutions are mostly headed up by those who do not seem to fully understand what it means to lead with integrity, and who appear content to wade in the shallows of shopping and perks?

Judith February is Freedom Under Law's executive officer.