Williams-Pretorius v Legal Practice Council Gauteng Provincial Office and Others (2023/097266; 2023/097113) [2025] ZAGPJHC 253 (10 March 2025)

FLYNOTES: PROFESSION – Legal Practice Council – Investigating Committee – Complainant unhappy with attorney who decided not to assist her – Committee did not conduct an investigation of any sort – Accepted legal practitioner’s explanation, simply ignoring the complainant’s version – Decision to dismiss complaint considered that she had lodged similar complaints against other legal practitioners – Investigating committee misconstruing its role – Decision to dismiss complaint reviewed and set aside – Legal Practice Act 28 of 2014, s 37(1).

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED: NO

Case Number: 2023-097266

In the matter between:

ANDELINE WILLIAMS-PRETORIUS

Applicant

and

LEGAL PRACTICE COUNCIL,

First Respondent

GAUTENG PROVINCIAL OFFICE

BARBARA DE JAGER (DUVENAGE)

Second Respondent

Case Number: 2023-097113

GAUTENG PROVINCIAL OFFICE

NICHOLAS MALHERBE

Second Respondent

JUDGMENT

JM BERGER AJ:

[1] For the longest time, Ms Andeline Williams-Pretorius has been trying to pursue what appears to be a damages claim against a particular media defendant, whose identity is not relevant to these proceedings. To date, she has had little success in getting her case off the ground, despite having sought the services of various legal practitioners over the years. In most (if not all) cases, her interactions with them have ultimately resulted in her lodging complaints against them with the Gauteng Provincial Office of the South African Legal Practice Council (“LPC”).

[2] Established in terms of section 4 of the Legal Practice Act 28 of 2014 (“LPA”), the LPC is “a body corporate with full legal capacity, and exercises jurisdiction over all legal practitioners and candidate legal practitioners”. The LPA defines a legal practitioner as “an advocate or attorney admitted and enrolled as such in terms of sections 24 and 30 [of the LPA], respectively”. One of the LPC’s objects is to “determine, enhance and maintain appropriate standards of professional practice and ethical conduct of all legal practitioners and all candidate legal practitioners”.[1]

[3] Two of Ms Williams-Pretorius’ complaints gave rise to the review applications considered here: one which deals with the dismissal of a complaint against a Ms Barbara de Jager by an investigating committee established in terms of section 37(1) of the LPA; and another with the manner in which the LPC approached a complaint lodged against a Mr Nicholas Malherbe. At the time, both Ms de Jager and Mr Malherbe were practicing attorneys. While Ms de Jager remains in practice, Mr Malherbe has subsequently been struck from the roll. I return to this issue later.

[4] Because of certain similarities between the two cases, as well as the substantial overlap of parties and legal representatives, I decided to hear both matters on the same day. Ms Andeline Williams-Pretorius appeared in person, while the LPC was represented by Damons Magardie Richardson Attorneys, with Ms Magardie appearing for the LPC in the first matter, and Ms Moolman in the second. The LPC’s practice note in each case suggested that both attorneys would appear in both matters.

[5] Before I consider each case separately, I would like to address a preliminary point initially taken by the LPC in each matter: Ms Williams-Pretorius’ alleged non-compliance with regulations 4(1) and 4(2) of the Regulations Governing the Administering of an Oath or Affirmation made in terms of section 10 of the Justices of the Peace and Commissioners of Oaths Act 16 of 1963. When I raised my concern about potentially dismissing applications on such a technical basis, in circumstances where Ms Williams-Pretorius could not herself be blamed, Ms Magardie withdrew her reliance on the point. So too did Ms Moolman. I am grateful for them having done so.

THE FIRST CASE

[6] At issue in this matter is a decision taken by the investigating committee on 15 August 2022 to dismiss the complaint against Ms de Jager. Submitted as one of seven separate complaints,[2] this complaint concerned the manner in which Ms de Jager first offered to assist Ms Williams-Pretorius, and then – some months

later – advised her that she would no longer be able to help. Although there is a dispute as to the exact nature of what was to be done, and on what basis, what is clear is that Ms de Jager’s services were not sought on a full fee-paying basis.

[7] Before I can consider the merits of Ms Williams-Pretorius’ case, I must first consider the LPC’s preliminary point on unreasonable delay. It is common cause that the review of the investigating committee’s decision was only initiated some 13 months after Ms Williams-Pretorius became aware of it. According to section 7(1)(b) of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”), which applies to decisions of this nature, these proceedings ought to have been instituted without unreasonable delay, and not later than 180 days after the date upon which Ms Williams-Pretorius was informed of the administrative action in question.

[8] In her heads of argument, Ms Magardie submitted that Ms Williams-Pretorius “failed to proffer any explanation for the inordinate delay, electing to issue this application as if she has an automatic right to do so outside of the prescribed time limit.” As pointed out to Ms Magardie in the hearing, that is simply not correct. While the explanation provided in the founding papers is somewhat rambling and imprecise, it does paint a picture of a lay litigant, clearly out of her depth, seeking to understand how to take her complaint further, and acting without unreasonable delay.

[9] Given the lack of prejudice to the LPC, which Ms Magardie correctly conceded, I am of the view that the interests of justice demand that the 180-day period to which section 7 of PAJA refers be extended to 30 September 2023. In the result, the LPC’s preliminary point on unreasonable delay cannot serve as a basis for Ms Williams-Pretorius’ review being dismissed without a consideration of its merits.

[10] The complaint lodged in respect of Ms de Jager runs to just two pages, making no reference whatsoever to the Code of Conduct for All Legal Practitioners, Candidate Legal Practitioners and Juristic Entities (“Code of Conduct”), let alone any particular provision. What appears to lie at the heart of the complaint is unhappiness with the manner in which Ms de Jager is alleged to have changed her mind, her alleged failure to provide a proper explanation in this regard, and her alleged failure thereafter to engage with Ms Williams-Pretorius.

[11] As appears to be the practice, the complaint was then forwarded to Ms de Jager for comment, with her written response to the LPC then being sent to Ms Williams-Pretorius for her consideration. After she responded, a single-person investigating committee was established, again seemingly in line with established LPC practice, purportedly to investigate the complaint. It is important to note that section 37(1) of the LPA only requires the LPC to establish an investigating committee (or one or more persons) “when necessary”.

[12] While little detail on the nature of an investigation is set out in the LPA itself, the LPC’s rules go much further.[3] Rule 40.2, for example, empowers an investigating committee to take a number of investigative steps “[f]or purposes of carrying out its responsibilities in terms of rule 40.1”. Under the heading “Investigation of alleged misconduct”, rule 40.1 provides:

“When a complaint or allegation of misconduct against the respondent is referred to the investigating committee, that committee must

investigate the complaint or allegation or cause the complaint or allegation to be investigated by the legal officer or by a legal

practitioner appointed by the Council for that purpose.”

[13] In this case, the investigating committee did not conduct an investigation of any sort. Instead, a decision to dismiss the complaint was made solely on the basis of a consideration of three documents: the original complaint, Ms de Jager’s response, and Ms Williams-Pretorius’ consideration of that response. The decision could only have been made in terms of section 37(3)(b) of

the LPA, which – in relevant part – states:[4]

“An investigating committee must, after investigating a complaint, if it is satisfied that … the complaint should be dismissed on the grounds that the conduct in question does not necessarily warrant misconduct proceedings, as set out in the code of conduct, … dismiss the complaint, inform the Council, the complainant and the legal practitioner, candidate legal practitioner or juristic entity of its finding and the reasons for it”.

[14] The half-page decision reads as follows:

“The complainant prepared a document wherein various complaints is made against various attorneys from various firms. The complaint

pertaining to Mr de Jager, the attorney in the subject matter can be found on page 7 of the documents prepared by Adelaine William

Pretorius. In the initial complaint against De Jager Attorneys, the complainant alleges that she phoned the attorney who indicated that they are prepared to assist on contingency fee basis and later on gave an indication that she should rather find another firm of attorneys as they feel that the instruction is outside of their scope of specialty and should resort more with a bigger firm. The complainant further makes various allegations pertaining to what she was told, brought under the impression that they can assist her, and then she says they said its not within their scope and they did not want to assist her.

Similar complaint was also laid against various other attorneys.

The complainant main complaint is unclear from the documents perused but it seems that she is of the opinion that the attorney did not act in a professional manner, did not act in her interest, and had numerous problems in securing advocates etc.

If we look at this complaint together with complaint laid with the LPC against all other attorneys she consulted including advocates, its clear the complainant feels she has been disrespected, ignored and basically made to feel helpless. Its clear, this is not the position, and its more the complainant is dissatisfied with every person who ever crossed her path. This complaint should not further be entertained and no charges to be formulated. Attorneys gave a reasonable explanation.”[5]

[15] In Groundup News NPC and Others v South African Legal Practice Council and Others,[6] Yacoob J considered the role that an investigating committee is required to play, how it is to function, and what is expected of a complainant.

“[40] The committee has extensive investigative powers, which are set out in rule 40 of the LPC Rules. It … is not a court which has to decide matters on pleadings and evidence placed before it by the parties. There is no onus on a complainant. A complainant simply has to bring conduct to the attention of the committee. Any other interpretation would be prejudicial to the public interest.

[41] The investigating committee does not function as a court. A complaint is not the same as motion proceedings, and a complainant does not bear any onus. The investigating committee has to investigate. It must follow up on the issues raised, obtain information and interview witnesses if the matter requires it. …

[42] It is the disciplinary committee which must make the decision whether a case is made out, if the matter is referred to it, and whether the evidence is good enough to establish guilt of the legal practitioner.

[43] To expect a member of the public complaining about the conduct of a legal practitioner to bring a complete case would make a mockery of what the LPA seeks to achieve. The LPC is there to assist members of the public rather than to protect legal practitioners by making it harder for members of the public to obtain redress. …

[44] The use of the phrase ‘available prima facie evidence’ shows that the committee does not have to decide whether a watertight case exists. It is not for the committee to evaluate the probity of the evidence. The committee has to evaluate only prima facie whether, if the evidence is found to be established, there would be a guilty finding. …”

[16] In that case, a legal practitioner was alleged to have “falsified documents and forged signatures on affidavits.” He was alleged to have done so in interdictory proceedings he had brought against the online publication GroundUp, which had run a series of articles about alleged corruption at the National Lotteries Commission, in which he featured negatively. In his view, GroundUp had to be muzzled.

[17] Recognising that allegations of perjury and forgery are serious in any context, Yacoob J noted that they “take on far more weight when made against an officer of the court, even when that person is acting in his personal capacity.” “This is because the integrity of officers of the court must be beyond question”, she explained, “as this impacts on the integrity of the whole system of the administration of justice.”[7]

[18] And yet despite these serious allegations, which had not been investigated, a one-person investigating committee – considering only the papers provided by the LPC – dismissed the complaint because the legal practitioner “had ‘given a reasonable explanation to the allegations made against him’ and … there was no reasonable prospect of a charge of misconduct against him succeeding.”[8]

[19] The complaint lodged in respect of Ms de Jager does not include serious allegations of this nature, which – if established – would undoubtedly be in breach of the Code of Conduct. But what Ms Williams-Pretorius’ complaint shares in common with GroundUp’s, is in how it was treated by an investigating committee that – contrary to its name – simply didn’t investigate. Instead, it accepted a legal practitioner’s explanation, simply ignoring the complainant’s

version.

[20] What makes matters worse here is that the investigating committee’s decision to dismiss Ms Williams-Pretorius’ complaint was made – seemingly in large part – on the basis that she had lodged similar complaints against other legal practitioners. The investigating committee did not even entertain the possibility that a number of unrelated legal practitioners could have responded in a similar way to a headstrong and opinionated woman determined to vindicate her rights.

[21] In misconstruing its role, just as the investigating committee did in GroundUp’s case, the investigating committee in Ms Williams-Pretorius’ complaint also committed an error of law. Its decision thus falls to be reviewed and set aside on the basis that it constitutes administrative action that “was materially influenced by an error of law”.[9] In so far as appropriate relief is concerned, I am of the view that it would be just and equitable in the circumstances to set the decision aside, and to remit the matter to a differently-constituted investigating committee for reconsideration.

THE SECOND CASE

[22] Two “decisions” appear to lie at the heart of the second case: first, an alleged decision of the LPC’s Risk and Compliance Department to conduct an investigation into Mr Malherbe’s affairs following the LPC’s discovery of his sequestration; and second, an alleged decision of the LPC not to entertain Ms Williams-Pretorius’ complaint in respect of Mr Malherbe’s conduct until it had received a report from the person tasked with investigating Mr Malherbe’s affairs.

[23] The complaint against Mr Malherbe was lodged on 5 May 2023. It concerned his conduct in providing pro bono legal services to Ms Williams-Pretorius in respect of her damages claim. According to her, Mr Malherbe did not work on her matter, failed to report to her on its progress, wasted her time, lied to her, and eventually stopped taking her calls. A copy of the complaint was sent to Mr Malherbe on 22 May 2023 for his response. He failed to respond.

[24] Acting in his capacity as Senior Legal Officer: Disciplinary Department, the LPC’s Mr Fourie advised Ms Williams-Pretorius of Mr Malherbe’s non-response. In that letter dated 5 July 2023, he also noted that the matter had been referred to an investigating committee for consideration. In another letter dated 17 July 2023, Mr Fourie noted that the LPC was awaiting an inspection report from its auditor who was conducting an inspection “to establish if … [Mr Malherbe was] still a fit and proper person to practice as a legal practitioner with the consent of his … trustee”.

[25] Implicit in Mr Fourie’s second letter was the understanding that the LPC would await the report before taking any further steps in respect of Ms Williams-Pretorius’ complaint. In her answering affidavit, the LPC’s Gauteng chairperson – Ms Puleng Keetse – records that the Risk and Compliance Department was instructed to conduct the investigation into Mr Malherbe’s affairs, and that such inspections are conducted as standard practice whenever a legal practitioner has been sequestrated.

[26] It is indeed unfortunate is that it was never clearly explained to Ms Williams-Pretorius that the reason why the LPC placed the brake on her complaint was because it was always a strong possibility that the auditor’s report would establish that Mr Malherbe was no longer a fit and proper person to practice as a legal practitioner, which could have seen him being suspended from practice, and ultimately removed from the roll of legal practitioners. In such circumstances, no purpose would be served by investigating her complaint.

[27] In the hearing, Ms Williams-Pretorius accepted this explanation, and conceded that if this had been made clear to her by Mr Fourie, she would never have brought this review application. But at the time that she did, she had drawn no connection between the two investigations, having been left exasperated by the LPC’s perceived indifference to her concerns. In her mind, Mr Malherbe’s sequestration and the subsequent investigation of his affairs by the LPC’s auditor had absolutely nothing to do with her complaint.

[28] Neither of the “decisions” of concern to Ms Williams-Pretorius is reviewable under PAJA (or the principle of legality), or alternatively, falls to be reviewed and set aside. The “decision” to investigate Mr Malherbe’s affairs was taken by the LPC, as a matter of course, in the public interest, and did no more than stay the investigation of her complaint pending the outcome of that investigation. And the “decision” to await that investigation was both rational and reasonable. As could have been predicted, Mr Malherbe was subsequently suspended from practice, and then struck from the roll.[10]

COSTS

[29] In both matters, Ms Williams-Pretorius has sought costs, without mentioning any scale, and in both matters, the LPC has sought costs, on the scale as between attorney and client. No adequate explanation has been provided by the LPC for why, if successful, it should obtain any costs order against a lay litigant seeking to vindicate their rights, let alone a punitive costs order. Although not invoked by Ms Williams-Pretorius, the Biowatch principle is very much at play.

[30] I am aware that this Court has held that “the failure of a lay litigant to appoint an attorney of record does not disentitle the litigant from recovering his or her taxed legal expenses and other disbursements incurred in the litigation.”[11] Should she be able to substantiate her costs, there is no good reason why Ms Williams-Pretorius should – in principle – be precluded from having a bill of costs placed before the Taxing Master for consideration.

ORDER

[31] In the result, the following orders are made:

a. In case no. 2023-097266:

i. The decision of the first respondent’s investigating committee to dismiss the applicant’s complaint against the second respondent is reviewed and set aside, with costs.

ii. The matter is remitted to the first respondent for reconsideration by a differently-constituted investigating committee.

b. In case no. 2023-097113:

i. The application is dismissed, with no order as to costs.

JM BERGER

ACTING JUDGE OF THE HIGH COURT

GAUTENG LOCAL DIVISION, JOHANNESBURGDates:

Hearing: 4 March 2025

Judgment: 10 March 2025

Appearances:

For the applicant: In person

For the first respondent in case no.

2023-097266: Ms SL Magardie of Damons Magardie Richardson Attorneys

2023-097113: Ms JM Moolman of Damons Magardie Richardson Attorneys

[1] Section 5(g)

[2] By the time these were submitted on 21 January 2022, Ms Williams-Pretorius had already lodged complaints in respect of three other legal practitioners: two attorneys at one firm; and an advocate.

[3] The rules were made in terms of sections 95(1), 95(3) and 109(2) of the LPA.

[4] Section 37(3)(b) also makes reference to an internal appeal in terms of section 41. At the time the complaint was dismissed, section 41 was not yet in force. It only came into operation on 26 May 2023.

[5] Errors and emphasis in original

[6] 2023 (4) SA 617 (GJ)

[7] At para 8

[8] At para 10

[9] Section 6(2)(d) of PAJA

[10] This was never brought to Ms Williams-Pretorius’ attention, who first learnt about these developments in the hearing.

[11] ABSA Bank v Auto Bleep CC and Others, unreported decision of DI Berger AJ dated 29 May 2015 under case no. 47252/12 at para 21, relying on Schwartz v Goldschmid 1914 TPD 122 and Parker v Herold 1935 TPD 376