Kellerman v Legal Practice Council Western Cape Office and Others

The applicant, Markram Jan Kellerman, lodged three complaints of professional misconduct with the first respondent (the Legal Practice Council, Western Cape Office) against the third respondent, attorney Pierre du Toit. The complaints arose from acrimonious litigation involving the sequestration of the joint estate of the applicant's sister and brother-in-law, and related entities. The third respondent acted for the petitioning creditors, provisional trustees, and liquidators in various matters adverse to the applicant's interests. The complaints were: (1) accepting briefs in breach of the code of conduct (conflict of interest); (2) failing to maintain honesty and integrity by preparing affidavits containing allegedly known falsehoods; and (3) overreaching regarding fees. The first respondent's investigating committee found that the third respondent had no prima facie case to meet and dismissed the complaints. The applicant, lacking an internal appeal remedy, sought to review this decision.

• Whether the first respondent's investigating committee failed to give proper consideration to the applicant's complaints against the third respondent.
• Whether the investigating committee failed to determine whether there was a prima facie case against the third respondent, including failing to call him to appear or to require viva voce evidence.
• Whether the investigating committee committed a material irregularity by accepting the third respondent's version over the applicant's.
• Whether the third respondent breached clause 58.8 of the Code of Conduct by accepting multiple briefs from liquidators and trustees in related matters, giving rise to a conflict of interest.
• Whether the fees charged by the third respondent constituted overreaching.

The application was dismissed. Each party was ordered to bear their own costs for the review application, the interlocutory discovery application, and the application to strike out.

Clause 58.8 of the Code of Conduct does not impose a blanket prohibition on a legal practitioner accepting a second or further brief from a liquidator, trustee, or interested party in subsequent proceedings. It only prohibits acceptance where an actual (not notional) conflict of interest arises. Whether a conflict of interest exists depends on the facts of each case. A legal practitioner who acts for a petitioning creditor in sequestration acts not to recover a debt but to place the estate under the law for the benefit of creditors; subsequently accepting a brief from the appointed trustee or liquidator does not, without more, create a conflict of interest.

The court observed that the third respondent's conduct was 'not beyond reproach'. Specifically, the third respondent wrote an unfortunate letter to the first respondent threatening a criminal complaint against the applicant for perjury and fraudulent tax evasion, and a complaint to the applicant's professional body. Additionally, in his opposing affidavit, the third respondent gratuitously opined that the applicant participated in a fraudulent tax scheme. This was irrelevant, unseemly, and unnecessary, and influenced the court's decision on costs.

This case clarifies the interpretation of clause 58.8 of the Code of Conduct for legal practitioners under the Legal Practice Act 28 of 2014. It confirms that there is no absolute bar on an attorney accepting multiple briefs from liquidators and trustees in related insolvency matters; only an actual conflict of interest is prohibited. The case also illustrates the limited scope of review of decisions by Legal Practice Council investigating committees, reinforcing that viva voce evidence is not a mandatory requirement and that a review court will not simply substitute its own view for that of the committee.