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TALK TO MY JUDGE!

13/04/2018 01:22:00 By Martin Dlamini

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A cold biting winter may have come well ahead of its season for the legal profession. Lawyers must be shivering at the mere thought of having to face Chief Justice Bheki Maphalala these days, who is throwing lawyers out of courtrooms like garbage, for failing to execute orders of the courts in respect to monies owed to clients.

Two law firms have felt this wrath in just a week and it would appear many more are in line to be left out in the cold if the number of public complaints against lawyers is anything to go by. Could we soon be saying don’t talk to me, talk to my judge?

It’s not for me to say whether the judge is right or wrong and we can expect the lawyers to challenge the CJ on how he has chosen to go about this, but the affected clients must be heaving a sigh of relief at the rare-as-snow in Manzini prospect of having somebody somewhere now looking out for them.

These are people who have exhausted all legal means to seek justice - Supreme Court included!
The lawyer watchdog, the Swaziland Law Society, has in all respects, become toothless with regard to calling its errant members to order and expediting disciplinary matters before its tribunal.

The CJ’s action comes at the backdrop of legislative changes to affect the legal profession in neighbouring South Africa. These have been brought about largely by the need for more transparency in the affairs of the legal profession, which members of the public are entitled to in order to make informed choices about their legal representatives.

There had been scathing attacks on the Law Society of South Africa on its handling of its affairs. Advocate Paul Hoffman, director of the Institute for Accountability in Southern Africa, was once quoted as saying that ‘openness is a foundational constitutional value’ that ‘applies to all governance, including that of errant attorneys’.

In an editorial by William Saunderson-Meyer, who spent a considerable amount of time questioning the conduct of the SA legal profession leading to the ongoing legislative changes, University of Cape Town law Professor Hugh Corder described the secrecy in the affairs of the legal profession on conduct issues, as ‘horrifyingly’ unconstitutional.

Saunderson-Meyer found that SA’s four regional law societies and the over-arching Law Society of SA (LSSA) did not have much regard for the Promotion of Access to Information Act (PAIA).

“If one wants to check on one’s doctor’s reputation, the Health Professions Council website details all disciplinary hearings against a practitioner’s name, including the full charge sheet and sentence.

But with attorneys there is simply no way of checking their vaunted professionalism on matters like failing to appear in court, not following client instructions, not responding to client correspondence, deliberate delays, financial mismanagement and overcharging,” he found.

He said unlike in the United Kingdom where disciplinary rulings are searchable online by name of both practioner and firm, SA’s law societies simply won’t disclose the identity of disciplined attorneys.

Checking the status of a lawyer should be made easy by the publicising of any disciplinary cases pending or judgments issued against a lawyer, either on the association’s website or on any platform easily accessible to the public.

Not all lawyers are bad apples, but it is the failure of their professional associations to rein in their members for unprofessional conduct that has given rise to public complaints. Given the experiences of South Africa, it would seem the scourge is contagious.

In eradicating it, our CJ seems to have chosen the ‘national disaster emergency’ approach. South Africa has amended the Legal Practice Act 28 of 2014 (LPA), where legal practitioners will - in the next few months or so - be governed by a single, national regulatory body called the Legal Practice Council (LPC).

Some of the members of the LPC may be non-practising legal practitioners, and will include ministerial appointments and academics. For the first time in the history of the profession, complaints against legal practitioners may be heard also by representatives who fall outside of the practising profession.

This is probably similar to our Council of the Law Society where we believe we are represented by no more than four members of the public and an officer appointed by the minister. What are they doing to protect the interests of the aggrieved clients, whose cries have invited the drastic action taken by the CJ?

We also need to ask what has become of the Law Society Fidelity Fund which, according to Section 43 (2) of the Legal Practioner’s Act, enables the Law Society to; “make such disbursements therefrom as are in the opinion of the Law Society necessary to meet expenses incurred by the Fund and to pay for loss sustained by any person in consequence of an act of dishonesty by a legal practitioner as such or his employee in the course of employment.” Does it still exist?

William Saunderson-Meyer once shared that a Durban man representing clients in fee disputes with lawyers, doctors and accountants had found that all professional disciplinary bodies share an identical modus operandi of ‘Delay, delay, delay!

They know that most complainants lack the stomach or the wallet for protracted battles’.
Is this what the chief justice is seeing in Swaziland to justify his actions? You be the judge...or should we say you be the CJ!