The South African Legal Practice Council v Ponoane

The respondent, an attorney, represented plaintiffs in an action against the Minister of Police in the Regional Magistrate's Court, Sterkspruit in 2012. After the magistrate prepared and faxed his judgment to the respondent, she criticized its quality and format. Following discussions, the magistrate agreed that the respondent would rewrite the judgment using the same facts, findings, and conclusions. The respondent provided a rewritten judgment which the magistrate signed and returned without alteration. The respondent's version substantively differed from the magistrate's original, including adding case law, providing more detailed reasons, and crucially altering the order - adding a costs order not contemplated by the magistrate and in one instance awarding R60,000 where only R50,000 was claimed. The respondent later sought to enforce this judgment. When the Minister discovered what had transpired, review proceedings were launched. The review court set aside the judgment and referred the matter to the Legal Practice Council for investigation. The respondent subsequently made allegations of bias against the reviewing judges and persistently denied wrongdoing throughout disciplinary proceedings.

• Whether the respondent's misconduct has been established on a balance of probabilities
• Whether the respondent is a fit and proper person to continue to practise as an attorney
• Whether the respondent's name should be struck from the roll of attorneys or whether a lesser sanction (suspension or fine) is appropriate
• What is the appropriate costs order

An order was granted striking the respondent's name from the roll of attorneys, with costs on the attorney-client scale.

An attorney who secretly collaborates with a judicial officer to rewrite a judgment during contested proceedings, thereby altering the judgment to their client's benefit (including adding orders not contemplated by the judicial officer), engages in conduct that demonstrates they are not a fit and proper person to continue practising as an attorney. Where such misconduct is coupled with persistent denial of wrongdoing, lack of genuine remorse, dishonest attempts to minimize the misconduct, and failure to make full and frank disclosure, the appropriate sanction is striking off the roll. In disciplinary proceedings concerning legal practitioners, the court's function is sui generis and requires a different approach to the Plascon-Evans rule - practitioners must make full and frank disclosure of all material information to enable the court to make a proper and informed decision. The distinction between regret (sorrow at being caught) and genuine remorse (gnawing pain of conscience for harm caused) is material in determining whether suspension rather than striking off is appropriate.

The court observed that it is highly unlikely that a member of the judiciary would ever again permit such interference in the performance of a judicial function. The court noted that the respondent had continued to practise without blemish since 2012, but this was insufficient to outweigh the serious character defects revealed. The court commented that the apologies tendered by the respondent were belated and unconvincing, likely motivated by the desire to avoid being struck off rather than reflecting true contrition. The court emphasized that precedents have limited value in the exercise of discretion in striking-off applications as facts are never identical and the exercise of discretion need not be the same in similar cases.

This case reinforces the high ethical standards expected of legal practitioners in South Africa and the judiciary's intolerance of conduct that undermines the judicial process. It establishes that secret collaboration between an attorney and a judicial officer to alter a judgment constitutes unprecedented misconduct warranting striking off. The judgment emphasizes that in disciplinary proceedings, legal practitioners must make full and frank disclosures and cannot adopt adversarial strategies that lack complete honesty. It clarifies the distinction between regret and genuine remorse in assessing a practitioner's fitness to continue practice, and demonstrates that persistent denial of obvious wrongdoing, coupled with lack of genuine contrition, will result in the ultimate sanction. The case also illustrates that the primary purpose of striking-off proceedings is protection of the public rather than punishment of the practitioner.