An advocate who has been practising for 42 years and is fighting an application to have her disbarred has lost her appeal against the Legal Practice Council’s (LPC) decision to issue an advisory note on the action.
Jennifer Hutchinson Wild’s legal bid was dismissed with costs by the Supreme Court of Appeal (SCA) last Thursday.
Wild approached the SCA after the Pretoria high court dismissed her application to review and set aside the decision by the LPC to issue an advisory note to all advocates regarding disciplinary proceedings involving advocates.
The court heard Wild is a member of the Bisho Society of Advocates. This falls under the Eastern Cape Society of Advocates (ECSA) and the LPC, which is a body established in 2018 to exercise jurisdiction over all legal practitioners.
On September 26 2017 the ECSA applied to the Eastern Cape High Court in Grahamstown to have Wild struck from the roll.
The striking-off application arises from three judgments of two divisions of the high court.
The judgments found Wild had “behaved dishonestly, thereby breaching her duty to the court, and also disregarded her professional ethics as an officer of the court”.
Ms Wild failed to demonstrate that the advisory note adversely affects her rights and that it has a direct, external legal effect. Accordingly, it does not constitute administrative action and is not reviewable
— Judge Fikile Mokgohloa
In her replying affidavit Wild denied the allegations, saying they “do not fairly or accurately reflect the facts and are an illustration of the type of prejudice which I suffer”.
Wild responded on January 10 2018 with a high court application to review the ECSA's striking-off application against her. That application is pending.
She asked the court to set aside and retract the LPC’s advisory note and give notice to all legal practitioners of the retraction.
Her grounds for review were that the decision taken by the LPC regarding the advisory note was contrary to the provisions of the Legal Practice Act (LPA), and that she had been severely prejudiced as she has not been afforded an opportunity to be heard.
She claimed she had been forced into expensive litigation and that the action was launched without a proper inquiry. She argued the LPC took irrelevant considerations into account and their decision was not authorised by the relevant legislation or LPC regulations.
The full court dismissed her application on the grounds the LPC’s decision regarding the advisory note was not reviewable because it does not affect Wild’s rights, nor did it have a direct, external legal effect.
The court found before the enactment of the LPA, courts had a common law right to enquire into the conduct of advocates and to determine what disciplinary procedure should be followed.
It was held the LPA did not alter the common law right of the courts to enquire into the conduct of advocates. Neither did the LPA alter the common-law standing and the ability of the General Council of the Bar and advocates’ societies to investigate the unprofessional conduct of advocates.
Wild’s lawyer told the SCA the advisory note was administrative action that affected her rights and had a direct, external legal effect.
The LPC argued that issuing an advisory note did not indicate any resolution and therefore held no more legal status than an advisory opinion. It argued the advisory note did not change any law or procedure contained in the LPA, as Wild was already facing a striking-off application.
SCA judge Fikile Mokgohloa said: “It is that application that has the capacity to affect her rights, not the advisory note. I therefore find Ms Wild failed to demonstrate that the advisory note adversely affects her rights and that it has a direct, external legal effect. Accordingly, it does not constitute administrative action and is not reviewable.”
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