| (1) |
A disciplinary committee must conduct disciplinary hearings subject to the provisions of this section and the rules determined by the Council, as contemplated in section 38. |
| (2) |
A disciplinary committee may, for the purposes of this section, appoint a person to assist it in the performance of its functions. |
| (a) |
A disciplinary committee may, for the purposes of a hearing, subpoena any person who— |
| (i) |
in its opinion may be able to give material information concerning the subject of the hearing; or |
| (ii) |
it suspects or believes has in his or her possession or custody or under his or her control any book, document or object which has any bearing on the subject of the hearing, |
to appear before it at the time and place specified in the subpoena, to be questioned or to produce a book, document or object.
| (b) |
A subpoena issued in terms of paragraph (a), must be— |
| (i) |
in the form determined in the rules; |
| (ii) |
signed by the chairperson of a disciplinary committee or, in his or her absence, any member of that committee; and |
| (iii) |
served on the person concerned as determined in the rules. |
| (4) |
A disciplinary committee may retain a book, document or object produced in terms of subsection (3) for the duration of the hearing. |
| (5) |
The chairperson of a disciplinary committee may call upon and administer an oath to, or take an affirmation from, any witness at the hearing who was subpoenaed in terms of subsection (3). |
| (6) |
At a hearing the person charged— |
| (i) |
may be present at the hearing of the proceedings; |
| (ii) |
may be assisted or represented by another person or a legal practitioner in conducting his or her defence proceedings; |
| (iii) |
has the right to be heard; |
| (v) |
may cross-examine any person called as a witness in support of the charge; and |
| (vi) |
may have access to any book, document or object produced in evidence; and |
| (i) |
may admit at any time before conviction that he or she is guilty of the charge; and |
| (ii) |
may, in the case where he or she makes an admission in terms of subparagraph (i), be deemed to be guilty of misconduct as charged. |
| (a) |
A witness who has been subpoenaed may not— |
| (i) |
without sufficient cause, fail to attend the hearing at the time and place specified in the subpoena; |
| (ii) |
refuse to be sworn in or to be affirmed as a witness; |
| (iii) |
without sufficient cause, fail to answer fully and satisfactorily to the best of his or her knowledge all questions lawfully put to him or her; or |
| (iv) |
fail to produce any book, document or object in his or her possession or custody or under his or her control which he or she has been required to produce. |
| (b) |
A witness who has been subpoenaed must remain in attendance until excused by the chairperson of the disciplinary committee from further attendance. |
| (c) |
A witness who has been subpoenaed may request that the names of the members of the disciplinary committee be made available to him or her. |
| (d) |
The law relating to privilege, as applicable to a witness subpoenaed to give evidence or to produce a book, document or object in a civil trial before a court of law applies, with the necessary changes, in relation to the examination of, or the production of any book, document or object, to any person called in terms of this section as a witness. |
| (e) |
A witness may not, after having been sworn in or having been affirmed as a witness, give a false statement on any matter, knowing that answer or statement to be false. |
| (f) |
A person may not prevent another person from complying with a subpoena or from giving evidence or producing a book, document or object which he or she is in terms of this section required to give or produce. |
| (8) |
The record of evidence which has a bearing on a charge before a disciplinary committee, and which was presented before any commission which investigated an event or conduct is admissible without further evidence being led if— |
| (a) |
the record is accompanied by a certificate from the chairperson of the body or commission; and |
| (b) |
the certificate certifies that the investigation was lawful, reasonable and procedurally fair. |
| (9) |
If the misconduct with which the legal practitioner, candidate legal practitioner or juristic entity is charged amounts to an offence of which he, she or it has been convicted by a court of law, a certified copy of the record of the trial and conviction by that court is, on the identification of the legal practitioner, candidate legal practitioner or juristic entity as the accused person referred to in the record, sufficient proof of the commission by him or her or it of that offence, unless the conviction has been set aside by a superior court. |
Mandating Procedures of Provinces Act, 2008
