Legal Practice Council v Kleynhans

The Legal Practice Council (LPC) applied to suspend attorney Stephanus Jacobus Kleynhans from practice for non-compliance with s 84(1) of the Legal Practice Act 28 of 2014 (LPA), which requires every attorney practising for their own account to hold a Fidelity Fund certificate. The respondent had failed to submit an audit report for his trust account for the financial year 1 March 2022 to 28 February 2023 by the prescribed deadline of 31 August 2023. In April 2024, the LPC launched urgent interdict proceedings. On 5 April 2024, Erasmus J issued an order by agreement postponing the matter to 29 July 2024 and interdicting the respondent from practising unless he obtained a Fidelity Fund certificate. Just before the return date, the respondent filed a supplementary affidavit confirming he had submitted a signed audit report to the LPC. The LPC opposed a further postponement and sought a 'proposed order' suspending the respondent permanently, requiring surrender of his enrolment certificate, and appointing curators to manage his practice and trust account.

• Whether the respondent's supplementary affidavit should be admitted given its late filing.
• Whether a further postponement of the suspension application should be granted.
• Whether the LPC had made out a proper case for the 'proposed order' suspending the respondent in terms more extensive than the Erasmus J order.
• Whether the court could grant an order effectively requiring a determination of the respondent's fitness to practice when sitting as a single judge.

The court admitted the supplementary affidavit, extended the Erasmus J interdict order until 30 August 2024, postponed the matter to 30 August 2024, directed the LPC to file a replying affidavit by 28 August 2024, ordered that the Erasmus J order would lapse if the respondent complied before 30 August 2024, ordered the respondent to pay the LPC's wasted costs on an attorney-and-client scale, and directed that a copy of the order be served on the Master of the High Court.

Where a regulatory body such as the LPC seeks an order suspending a legal practitioner that effectively amounts to a determination of fitness to practice — including surrender of enrolment certificates and appointment of curators — the application must be supported by sufficient averments addressing the three-stage enquiry (whether the practitioner is no longer fit and proper, whether suspension or striking-off is appropriate, and what the appropriate order is). Mere non-compliance with the requirement to hold a Fidelity Fund certificate, without more, is insufficient to sustain such relief. Additionally, in the Western Cape Division, such relief must be heard by two judges.

The court observed that an investigation by the LPC followed by a disciplinary hearing before approaching a court to strike off or suspend a practitioner should be the preferred approach under the LPA and prevailing case law, though it accepted there may be instances where misconduct is so serious that this would not suffice. The court also remarked that while the LPC granted the respondent consent to act as practitioner in eight matters after the Erasmus J order, the proposed order did not address this situation, which the court found strange.

This judgment clarifies the evidentiary threshold required when the Legal Practice Council seeks to suspend a legal practitioner in terms beyond a temporary interdict pending compliance. It affirms that the three-stage enquiry established in Law Society, Northern Provinces v Mogami must be addressed on the papers, and that the practice in the Western Cape Division requiring two judges for suspension or striking-off applications must be observed. It also reinforces the principle that postponements may be granted where a party has taken meaningful steps towards compliance and the opposing party would not suffer irreparable prejudice.