Legal Practice Council v Bulelani Rubushe

Mr Bulelani Rubushe was an attorney practising under the name B.R. Rubushe Attorneys in East London. He represented Mr Zama Mfengwana in a Road Accident Fund claim. Rubushe concluded a contingency fee agreement with his client that purported to allow him a fee of 25% of the settlement amount (R904,889.17), which was structured in violation of the Contingency Fees Act 66 of 1997. When the settlement was presented to Plasket J for approval, the judge found the agreement non-compliant with the Act, grossly disproportionate to the modest work done, and evidence of unconscionable conduct. Plasket J set aside the agreement and limited Rubushe to attorney and client costs on taxation. Despite this judgment, Rubushe: (1) refused to accept the court's finding and sent disrespectful letters to the Cape Law Society; (2) prepared four different fraudulent bills of costs containing charges for work not done; (3) paid his client only R700,000 of the settlement after giving notice of withdrawal as attorney, wrongfully withholding approximately R204,889; and (4) only paid the withheld amount after being sued and ordered to pay by Robeson J in September 2017. The Legal Practice Council then brought an application to strike Rubushe from the roll of attorneys.

• Whether the respondent attorney's dishonest conduct rendered him unfit to remain on the roll of legal practitioners
• Whether suspension from practice for two years was an appropriate remedy in circumstances involving proven dishonesty
• What are the exceptional circumstances required for a court to order suspension rather than striking off where dishonesty has been established
• Whether conditions of rehabilitation must accompany an order of suspension and what happens when such conditions are absent

The appeal was upheld with costs on the scale as between attorney and client. Paragraphs 1 and 11 of the revised High Court order of 4 August 2022 were set aside. Paragraph 1 was substituted with an order directing that the respondent's name be struck off the roll of legal practitioners kept by the Legal Practice Council in terms of s 30(3) of the Legal Practice Act 28 of 2014. Paragraph 12 of the High Court order was consequentially renumbered as paragraph 11. Save for these amendments, the revised High Court order was otherwise confirmed.

Where a court finds that a legal practitioner has acted dishonestly and is consequently not a fit and proper person to remain on the roll, the circumstances must be exceptional before a court will order suspension instead of removal from the roll. The character of dishonest conduct, not its degree of success or ultimate outcome, is determinative of fitness to practice. Any order of suspension must be conditional upon the cause of unfitness being removed and must include appropriate conditions for rehabilitation; otherwise, the unfit person will return to practice with the same disability. An attorney who wishes a court to consider suspension rather than striking off must place the court in a position to formulate appropriate conditions of suspension. The inquiry is not what constitutes appropriate punishment for past transgression but what is required for protection of the public in the future. Where a practitioner shows no amenability to rehabilitation, refuses to accept responsibility, blames others, and perpetuates dishonest conduct after initial exposure, striking off is the only appropriate remedy.

The court observed that Rubushe's conduct in sending disrespectful and contemptuous letters to the Law Society, in which he accused Plasket J of acting ultra vires and maliciously, constituted further conduct unbefitting a member of the legal profession. The court noted approvingly Plasket J's description of Rubushe's conduct as 'rapacious and unconscionable' and the High Court's characterization of his answering affidavit as 'an attempt at explaining the inexplicable.' The court also noted with implicit approval Plasket J's detailed analysis of the Contingency Fees Act and his reference to Thulo v Road Accident Fund as setting out the legal position 'in very clear terms.' The judgment emphasizes that it is inconceivable that anyone other than Rubushe would have invented attendances in bills of costs that had not actually occurred, indicating the overwhelming probability that fraudulent billing was at his own instance despite his attempts to blame others.

This case reinforces the principle established in Malan and other Supreme Court of Appeal judgments that dishonesty by legal practitioners ordinarily warrants striking off rather than suspension, and that exceptional circumstances must exist before a court will order suspension where dishonesty has been proven. It emphasizes that: (1) the character of dishonest conduct, not its degree of success, determines fitness to practice; (2) any suspension order must be conditional upon removing the cause of unfitness and must include conditions for rehabilitation; (3) the inquiry is not about appropriate punishment for past transgression but what is required for protection of the public in the future; (4) lack of insight, failure to take responsibility, and perpetuation of dishonest conduct after initial exposure demonstrate unfitness for rehabilitation through suspension; and (5) courts must apply established principles rather than exercise unfettered discretion in striking off applications. The judgment provides important guidance on the proper approach to determining sanctions for attorney misconduct involving dishonesty and the high threshold for avoiding striking off in such cases.