Clauses 36 to 45: Code of conduct and establishment of disciplinary bodies

3.16.1 Clause 36 requires the Council to draw up a code of conduct. In terms of clause 36(4) the code must be published in the Gazette. This provision supports the principle of transparency. Clause 36(3) states that the Council must publish the code to inform members of the public of the existence of the code. The Council must also publish the draft code of conduct for public comments before issuing it to legal practitioners.

3.16.2 Clause 37 deals with the establishment of disciplinary bodies. In terms of clause 37(1), each Regional Council must establish investigating committees to conduct

investigations into complaints against legal practitioners. If this committee finds that the legal practitioner may be guilty of misconduct, then the matter is referred to a disciplinary committee for a full hearing. The purpose of the investigating committee is to obtain and consider evidence of alleged misconduct and to decide whether a full enquiry is warranted. In terms of clause 37(3), each Regional Council must, from time to time, establish

disciplinary committees to adjudicate on matters referred to them.

3.16.3 Clause 37(4) provides for the composition of disciplinary bodies (in relation to both investigating committees and disciplinary committees). These bodies must be accessible to the public, must promote the efficient resolution of complaints and must be representative in respect of race, gender, national and regional demographics and include members of the public.

3.16.4 Clauses 37(5) and (6) provides for an appeal mechanism for legal practitioners aggrieved by an outcome of a disciplinary hearing, an appeal tribunal. In this regard such appeal tribunal must be prescribed.

3.16.5 Clause 37(7) provides that the Council may in the rules determine procedures to be followed by disciplinary bodies.

3.16.6 Clause 37(8) provides that where a complainant is aggrieved by the outcome of a complaint, he or she may lodge an application for a review with the Ombud. A legal

practitioner has a right of appeal, which implies that the legal practitioner may challenge the facts presented at a hearing, whereas a complainant has a right of review with the Ombud, where only procedural matters relating to the hearing of a complaint and the outcome thereof may be challenged.

3.16.7 Clause 38 provides that complaints against legal practitioners, candidate legal practitioners and juristic entities (meaning the legal practice itself) must be lodged with the Regional Council having jurisdiction and must be dealt with in the manner and form determined in the rules by the Council.

3.16.8 Clause 39 sets out the provisions for the requirements of a disciplinary hearing, such as subpoenas, representation of the legal practitioner charged and the examination and cross examination of witnesses, among others.

3.16.9 In terms of clause 40, a disciplinary committee must, within 30 days after the conclusion of a disciplinary hearing, decide whether the legal practitioner is guilty of misconduct. The legal practitioner, candidate legal practitioner or representative of the juristic entity must be informed of the outcome, if found guilty. Clause 40(3)(a) sets out the sanctions which a disciplinary committee may impose. These range from the payment of compensation to a complainant, the imposition of a fine, temporary suspension or advising

the Council to apply for the striking off of a legal practitioner or other appropriate relief. It is important to note that the Council applies to court for the striking off of a legal practitioner.

3.16.10 Clause 41 sets out the powers of the Ombud when he or she reviews a matter at the request of a complainant. A hearing on review must be done in accordance with the procedure determined by the Ombud. A late filing of a review may be condoned. The Ombud may confirm the findings of a disciplinary committee, set aside the findings if the procedure was substantially unfair, or, if there has been an unreasonable delay on the part of the disciplinary body, substitute the decision of the disciplinary body for his or her own decision. Where the outcome of a disciplinary hearing is taken on review, the Ombud may confirm the outcome or substitute the decision of a disciplinary body if there was a

substantial miscarriage of justice.

3.16.11 Clause 42 deals with appeals, which must be done in the manner prescribed in regulations.

3.16.12 Clause 43 sets out the further role of the Ombud which is to monitor the investigation of a complaint and the conduct of a disciplinary body during a hearing.

3.16.13- Clause 44 provides that the Council may apply to court for the suspension of a legal practitioner where there is evidence that he or she misappropriated trust money or is guilty of other serious misconduct.

3.16.14 In terms of clause 45, the High Court retains the ultimate power to adjudicate upon matters relating to the conduct of legal practitioners.

3.16.15 The clauses regarding disciplinary matters relating to legal practitioners are transformational in that the current regime does not provide for the oversight of disciplinary matters relating to legal practitioners, by an independent body, except through a court process. The clauses relating to the oversight role of the Ombud provide for greater accountability on the part of the legal profession to the public.