The Pretoria high court has ordered the Legal Practice Council (LPC) to admit an attorney after she was barred by the council for a plagiarism case and for being dismissed from her previous job for sleeping during her night shift.
Malesela Sharlotte Sebatsana had challenged the LPC for barring her from being admitted as a legal practitioner as the council claimed she was not fit and proper due to past transgressions while she was studying law.
In 2016, while employed by the National Health Laboratory Services (NHLS) as a medical technologist, Sebatsana faced disciplinary charges for falling asleep during her night shift. At the time, she was a law student at the North West University (NWU) and was six months pregnant, while working 12 hours without a break.
Despite having requested to be released from the night shift, confessing to sleeping on the job, which prevented her from executing her duties, and apologising for her transgression as it involved the lives of others, she was dismissed for dereliction of her duties in 2017.
Another transgression took place in her fourth year at NWU in 2019, when she took part in a group assignment. As the submission time was due and some group members had not completed their assignments, they decided to swap answers. This led to Sebatsana being charged with plagiarism, to which she pleaded guilty. As punishment, she forfeited the module, which she had to repeat after semester to complete her LLB degree.
Upon disclosing these transgressions, the LPC’s provisional affairs committee (PAC) requested Sebatsana to file a supplementary affidavit. Her application for admission from the roll was then removed.
She was then required to appear before the PAC to determine whether she was a fit and proper person to enter the legal profession by admission as an attorney and was further requested to submit documents on her disciplinary matters.
Sebatsana submitted the required documents in April 2023 relating to her disciplinary hearing at the NHLS and gave in a letter from the NWU which confirmed her conviction of plagiarism after entering a plea agreement with the university. The documents from the university also detailed how she attended remedial programs as part of her sanction and confirmed that no further misconduct was committed as she was fully rehabilitated.
NWU further supported her admission and confirmed that Sebatsana was indeed a fit and proper person for her admission application.
After considering all submissions, the PAC recommended to the LPC that Sebatsana was regarded as fit and proper to be admitted as a legal practitioner.
LPC concerned she lacked remorse and honest
The LPC, however, did not fully accept the recommendation and raised concerns that Sebatsana’s past transgressions involved dishonesty and that she appeared to lack remorse.
The LPC recommended a psychological report, which found that Sebatsana was fit and proper but once admitted to practice should be monitored for 12 months.
She presented a picture of someone who is emotionally and psychologically adjusted and has been rehabilitated.
— Judge JP Vorster
But the LPC instead opted to oppose this and requested the application to be withdrawn, only to be considered again after the expiry of the 12 months.
Despite this, Sebatsana, on the back of the recommendation by the PAC, decided to go ahead and submit an admission application.
The LPC intervened in this application and filed an affidavit opposing it on the basis that Sebatsana’s dismissal at the NHLS was disputed at the CCMA as unfair and when the CCMA ruled in favour of her employer, she appealed the decision.
In addition, the LPC said her employer did not receive her request to be relieved of her night-shift duties, meaning this claim was untruthful.
Another issue pointed out by the LPC was that Sebatsana did not provide a document proving she apologised for sleeping while on duty. However, it was demonstrated by her legal representative that her apology was not in writing and that the CCMA did not rule that she was a dishonest person.
High court finds that LPC was incorrect in their decision
Judge JP Vorster said it was clear that the psychological report only raised the possibility of certain psychological difficulties but made no categoric findings.
Instead, there were positive aspects of the report that outweighed the few negative aspects highlighted by the LPC, Vorster said, such as Sebatsana appeared relaxed through her sessions with the experts, was well-groomed and maintained eye contact. She also displayed an enthusiastic and co-operative attitude with the examiner and she showed to have the ability to fully own and accept responsibility for her behaviour.
“She presented a picture of someone who is emotionally and psychologically adjusted and has been rehabilitated,” said Vorster.
While acknowledging that the LPC is one of the custodians of the legal profession and its views should be taken into serious consideration, Vorster said: “It does not follow, however, that an aspirant legal practitioner is duty bound to, in all circumstances, subscribe to the views expressed by the LPC. In our opinion, the decision by [Sebatsana] to proceed with this application despite the views expressed by the LPC cannot, in all circumstances, be faulted.”
He said while the court’s views differ from those of the LPC, the judgment should not be seen as criticism of the council’s conduct in the matter. Instead, the LPC had the right and duty to place all relevant arguments and facts before the court for an informed decision to be made.
“In view of the foregoing, we are satisfied that the [Sebatsana] is a fit and proper person to be admitted as a legal practitioner.”
Vorster ordered Sebatsana to be admitted as a legal practitioner of the high court in terms of the Legal Practice Act and for the LPC to enrol her as a legal practitioner in terms of the act.
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