High Court overturns LPC decision to bar prospective attorney from admission

In the case of Sebatsana v South African Legal Practice Council, the Pretoria High Court admitted an aspiring attorney despite the Legal Practice Council (“the LPC”) opposing her application for admission.

Background

In 2016, the prospective attorney, who was pregnant at the time, worked at the National Health Laboratory Services whilst pursuing her LLB. She fell asleep during a night shift whilst working for the lab. Consequently, she failed to complete critical work that was required of her. She took full responsibility for her actions and apologised for the transgression but she was dismissed. She then referred the dismissal to the CCMA who ruled against her.

In addition in 2019, while attending university, she was charged with plagiarism. She pleaded guilty and took full accountability. The university declared her to be fully rehabilitated and confirmed that she did not engage in any other misconduct. By virtue of her transgressions, the Provisional Affairs Committee (“the PAC”) of the LPC requested her to remove her application for admission as an attorney, which she did. Additionally, the PAC required her to appear before it to determine if she was fit and proper. After her appearance, the PAC recommended to the LPC that she be deemed fit and proper and withdrew their objection to her admission as an attorney.

The LPC requested that she provide a psychological report to assess her suitability as being fit and proper. While the LPC noted concerns that she may struggle with low self-esteem, energy and a lack of enthusiasm, it also highlighted that she may be unusually sensitive to criticism and may have issues with somatic distress. Additionally, the report included some positive findings, describing her as a harmonious and well-adjusted individual who showed remorse for her actions and appeared to be rehabilitated. The LPC took cognisance of these findings.

The LPC was however concerned about the prospective attorney’s past where she was dishonest, saying that in their view she had not taken responsibility for her actions and was not remorseful. This was due to the fact that she challenged the CCMA’s decision and did not provide proof that she had apologised for her conduct.

The LPC was also concerned that the prospective attorney attempted to place herself in an overly positive light by minimising her faults and denying her psychological problems.

Consequently, the LPC wanted the prospective attorney to be monitored for a further 12 months. Although the LPC requested her to withdraw her application for admission, she did not. The LPC found this to be an unjustifiable disregard by the prospective attorney of the LPC and untenable.

The court’s findings

The fact that the prospective attorney exercised her statutory rights to challenge the CCMA decision could not be interpreted as an indication that she did not take responsibility and lacked remorse. The court found that the LPC’s findings in this regard were unjustified.

In the court’s view, the psychological report did not make categoric findings. The report merely raised the possibility that there may have been psychological difficulties. In addition, the fact that the prospective attorney may have attempted to place herself in an overly positive light was not significant given the positive findings of the report.

The court found that these positive findings outweighed the few negative aspects highlighted by the LPC. The prospective attorney was relaxed with the psychologist, she displayed enthusiasm and cooperation, she maintained appropriate emotional expressions, appeared insightful and accepted responsibility for her conduct. Additionally, she showed that she maintained good judgement. While there was room for emotional development, she was not overwhelmed by the demands posed to her and she appeared to be in control of her circumstances. She showed that she was emotionally and psychologically adjusted and rehabilitated.

Although the prospective attorney proceeded with her application for admission despite the LPC’s request for her to withdraw it, the court found that the LPC’s criticism in this regard was unfair. Even though the LPC was entitled to place information before the court which had a bearing on her fitness, the prospective attorney was equally entitled to place her application before the court.

The court highlighted that the LPC is the custodian of the legal profession with its views warranting serious consideration. Despite this, the court explained that an aspiring practitioner is not duty-bound to subscribe to the views expressed by the LPC. The prospective attorney’s decision to proceed with her admission application despite the views of the LPC could not be faulted.

However, the court was not critical of the LPC’s conduct. It explained that the LPC has the right and the obligation to place all relevant facts before the court to assist it in determining whether a prospective practitioner is indeed fit and proper.

Conclusion

The court found the prospective attorney to be fit and proper. As a result, she was admitted as an attorney and the court did not penalise the LPC with a costs award against it because it elected to oppose her admission.

Aslam Moosajee

Executive | Dispute Resolution

amoosajee@ensafrica.com

Zameer Omar

Candidate Legal Practitioner | Dispute Resolution

zamomar@ensafrica.com