Mandating Procedures of Provinces Act, 2008
R 385
Legal Practice Act, 2014 (Act No. 28 of 2014)Chapter 4 : Professional Conduct and Establishment of Disciplinary Bodies37. Establishment of disciplinary bodies |
| (1) | The Council must, when necessary, establish investigating committees, consisting of a person or persons appointed by the Council to conduct investigations of all complaints of misconduct against legal practitioners, candidate legal practitioners or juristic entities. |
(2)
| (a) | An investigating committee may, for the purposes of conducting an investigation contemplated in subsection (1), direct any legal practitioner or an employee of that legal practitioner to produce for inspection any book, document or article which is in the possession, custody or under the control of that legal practitioner or employee which relates to the complaint in question: Provided that the investigating committee may make copies of such book, document or article and remove the copies from the premises of that legal practitioner. |
| (b) | The legal practitioner referred to in paragraph (a) or employee in question may not, subject to the provisions of any other law, refuse to produce the book, document or article, even though he or she is of the opinion that it contains confidential information belonging to or concerning his or her client. |
| (c) | Any person who performs any function under this subsection, may not disclose any information which he or she obtained in the performance of such a function, except— |
| (i) | for the purposes of the investigation or a hearing by a disciplinary body; |
| (ii) | to any person authorised thereto by the Council or the Board who, of necessity, requires it for the performance of his or her functions under this Act; |
| (iii) | if he or she is a person who, of necessity, supplies it in the performance of his or her functions under this Act; |
| (iv) | when required to do so by order of a court of law; or |
| (v) | at the written request of the Ombud. |
| (3) | An investigating committee must, after investigating a complaint, if it is satisfied that— |
| (a) | the legal practitioner, or the candidate legal practitioner concerned may, on the basis of available prima facie evidence, be guilty of misconduct that, in terms of the code of conduct, warrants misconduct proceedings, refer the matter to the Council for adjudication by a disciplinary committee; or |
| (b) | the complaint should be dismissed on the grounds that the conduct in question does not necessarily warrant misconduct proceedings, as set out in the code of conduct, it must dismiss the complaint, inform the Council, the complainant and the legal practitioner, candidate legal practitioner or juristic entity of its finding and the reasons for it, whereafter the complainant may appeal in terms of section 41, if the complainant is aggrieved by— |
| (i) | the manner in which the investigating committee conducted its investigation; or |
| (ii) | the outcome of the investigating committee. |
| (4) | The Council must, when necessary, establish disciplinary committees, consisting of at least three persons, to adjudicate complaints against legal practitioners and candidate legal practitioners referred to it in terms of subsection (3)(a), and must also designate one of those persons as chairperson thereof, who may not be a lay person referred to in subsection (5)(e)(ii). |
| (5) | When establishing disciplinary committees the following factors must, as far as is practicable, be taken into account: |
| (a) | the racial and gender composition of South Africa; |
| (b) | the ease of access by persons necessary for the finalisation of the matters in question; |
| (c) | the need to promote the efficient resolution of complaints made in terms of this Act; |
| (d) | national and provincial demographics; |
| (e) | the need to include— |
| (i) | an advocate and an attorney, or failing which, there must be at least— |
| (aa) | one advocate, in the event of the legal practitioner being an advocate or in the event of the candidate legal practitioner being a pupil; and |
| (bb) | one attorney, in the event of the legal practitioner being an attorney or in the event of the candidate legal practitioner being a candidate attorney; and |
| (ii) | at least one lay person drawn by the Council from a list of persons established and maintained by the Office of the Ombud who has been approved by the Office of the Ombud, as being suitable to serve on disciplinary committees and who is paid an allowance for this purpose determined by the Council and published in the Gazette; |
| (f) | the need to provide a cost-effective disciplinary system; and |
| (g) | the requirements of administrative justice. |
