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CONTENTS
Page
WELCOME v
Learning unit 1: The Legal Profession 1
Learning unit 2: Philosophical approaches to ethics 11
Learning unit 3: The South African legal profession 23
Learning unit 4: Role morality 43
Learning unit 5: Examples of situations open for unethical conduct 52
LJU4802/1 (iii)
(iv)
1 WELCOME
Welcome to this module, Professional Ethics (LJU4802), which is offered by the

Department of Jurisprudence. It is a compulsory module for LLB students, and
deals essentially with the ethics of lawyers as professionals. In this module we will
therefore mainly discuss “legal ethics” as a manifestation of professional ethics
which, in turn, is a branch of general ethics.
Although universities normally go to great lengths to ensure that their LLB students
are equipped with the required levels of expertise and skill, the formal training they
give does little to prepare students for the moral dilemmas they will have to deal
with in the legal profession. This module is therefore aimed at showing you the
necessity of an own moral character, and helping you to develop a moral framework
as a lawyer. We wish you to become more than just a competent and decent lawyer.
We want you to aspire to higher ethical values and to develop the kind of character
found in exceptional members of the profession. In short, we hope that this module
will inspire you to become a more caring lawyer with a highly developed moral sense.
To everyone who proposes to have a good career, moral philosophy is indispensable
~ Cicero, De Oficiis, 44 BC
BACKGROUND
As you proceed through this study guide, you will come across ideas and explanations.
Some will challenge you and others will enjoy your support. After all, exposure to
different perspectives is what makes learning such an adventure. It teaches you to
become critical and to consolidate and appreciate various perspectives. You will also
be required to engage actively with ethical issues in legal practice. It is crucial that
as you work systematically through the module, you become more and more able
to transfer the skills and knowledge you acquire in this module to everyday life and
your profession.
We shall indicate in every learning unit what you should be able to do after you have
worked your way through that particular unit. You will find the objectives of each
unit below the title of the unit. However, the most important general objective for
us is that you will come to appreciate the need to develop a more ethically conscious
profession.
Legal ethics is a branch of ethics and ethics as such studies moral discourse, that is,
it studies and presents arguments concerning talk about morals and moral behaviour.
What does this mean?
THE NATURE OF MORAL DISCOURSE

In everyday life we act in a variety of ways to express our praise or condemnation.
For example, in a society where taking care of the elderly is highly valued, a school
boy assists an elderly lady to cross a busy road. Our approval of his behaviour can
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be shown in a number of ways. One can commend him by saying: “Well done, you
can be proud of what you did!” or by giving him the thumbs-up, a high-five or a
pat on the shoulder.
If you reflect on the nature of the incident, a judgment of a general nature can be
made. For example: “He did the right thing to help the old lady”, or even “It is clear
that he is a boy of good moral standing”. We use terms of a certain nature: “right
thing” and “moral standing”. This can spark off an ethical discussion. For example,
we may ask: Is this really a case of moral obligation, or of good etiquette or even of
tradition? Does “right” in this context express moral approval or only satisfaction
that a social rule was obeyed? Or is it perhaps approval of the boy, because he proved
himself a worthy member of a particular cultural group? In the same vein we may
question whether his good deed is any indication of the boy’s moral standing. In
other words, this event provides the basis for a further discussion of what makes a
situation a moral situation.
On what then is moral approval or condemnation based? Is a moral judgment

universal by nature? In analysing this, we apply ethics. In short, ethics studies moral
talk (discourse) and as such ethical talk is reflective talk, that is, talk about what goes
on in the world: The boy helping the old lady, we giving him the thumbs-up, calling
it a “right act, in what sense is it “right”? Admittedly, he deserves praise because he
followed the rules. It is, after all, in the interest of society that the elderly be cared
for. He is indeed a virtuous, good person.
From the preceding discussion it should be clear that moral talk has to be distinguished
from factual talk. In a court case, we may hear the following testimony: “Jabu had a
gun in his right hand which pointed at Ntombi. The next moment John pulled the
trigger. Then I saw Ntombi grabbing her breast and falling to the ground.” These
are statements of fact; they convey what the witness saw – they were real events
which happened in his experience. They have to be verified against other witnesses’
accounts of what they saw and heard. In the end, the judge will pronounce on the
truth of it. Therefore, factual statements are about things and events in the world.
They are open for testing. If they pass the relevant tests, they are true; if they don’t,
they are ignored.
In contrast to factual statements we have moral statements. For example: “Mzu’s wife
ought not to have cheated on him with Mkize”; “Mkize ought not to have told stories
about his fling with Mzu’s wife”; “It was wrong of Mzu to believe untested stories”;
“No one has the right to end another’s life because of anger”. These utterances (and
the same apply to actions conveying praise or blame) express the attitudes of people
and not facts in the real world. But we can and do talk about these attitudes and
judgements. We constantly discuss them, try to justify them and convince others to
change their attitudes. How is this possible?
With a discussion, we do not mean a noisy argument or altercation, but a rational

discussion in which the participants allow each other to put forward their case. The
participants are open for persuasion, are prepared to explain what they mean, to
back up their claims and to consider and answer to criticism. Three questions arise
against this background:
(a) What are the conditions for constructive ethical thinking and/or debate?
(b) How should your discussion proceed to make your position acceptable?
(c) What is the task of the ethicist? What does he or she hope to achieve?
(vi)
Welcome
As this is not an ethics course, we cannot explore these questions fully. The following
discussion will provide some pointers that will help to make a discussion of legal
ethics more meaningful. We shall proceed in a question-and-answer way. Play along,
answer the questions and read the discussions because these opening considerations
will make it easier to follow the rest.
The underlined sections are tasks for you to complete before proceeding. Stop there.
Think about the question, pen down an answer and only then proceed.
Let’s start. Think about abortion. Abortion is legal in South Africa; in other words,
people think it is right; it should be allowed. But there are people who believe it
should NOT to be allowed because abortion is wrong.
Now, stop and distinguish between factual and moral questions or claims about
abortion. Give examples.
Factual questions and claims have to do with the state of affairs, for example, the
people who may perform abortions; their training and competence; the risks of an
abortion; statistics about abortions, the reasons for undergoing an abortion, and
so forth. The moral questions, on the other hand, deal with the attitudes about
abortion, such as that it should be banned because it is a sin and the same as taking
someone’s life.
To focus on the moral discussion –
What do you think? Is abortion right or wrong?
Encircle your answer: RIGHT/ WRONG.
Say you are all against abortion whenever it is discussed. But when your teenage
daughter falls pregnant in her grade 12 year, you do not hesitate to find out where
abortions are performed in your city or town.
What is the moral importance of the finding out what the possibilities of abortion are?
The act of finding out of where abortions are performed translates into “Abortion
is a good thing”. Although we deal mostly with language acts, in other words, what
people say, actions also speak and reveal a certain attitude. As you will see, in this
module this is all-important. In this case, you will be branded as a double-talker,
which, in turn, is a moral judgment on you.
Do you think it is possible to reach a final, absolute answer so that it will be possible
to state: “Abortion is right and that is final!”? If so, how is this possible? If no answer
is final, what is the use of moral debate and how is it possible?
Because we are dealing with attitudes, you should understand that attitudes are the
result of culture, traditions, education, friends, religion, and the like. We therefore
have to realise that final answers are out of reach. Perhaps you think that legislation
is the answer: Because abortion is legal, it is right. It is not true. Although abortion
is legal in South Africa, most churches condemn it. They advise their members to
criticise abortion as morally wrong. What is the use of moral debate? People live
together and have to get along. Certain decisions have to be taken to make it possible.
Therefore, morals and moral attitudes need to be discussed.
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Let’s look at this issue once again. Because of the high rate of unwanted pregnancies
in our society, some people decided that something needs to be done and so a public
debate was started. Arguments for and against abortion were raised, criticised, and
improved. People changed their attitude because they began to see the matter in a
different light. Eventually, Parliament debated the issue and, because the majority
was in favour of abortion, it was legalised and the rules for performing an abortion
were laid down. Nonetheless, the matter is still open for discussion. Those against
it continue to protest and it is possible, as with all matters of this kind, that the
objectors may someday change the law. This is what happens in a well-ordered,
democratic society.
How is moral debate possible? In order to start discussing this issue, turn back
to your judgement on abortion where you chose RIGHT/WRONG. Say a friend
differs from you, what do you expect his next argument to be?
If he has a real discussion in mind, he will ask you why you think abortion is right/
wrong or he will give reasons why he disagrees.
Is this friend obliged to accept any of the reasons you give?
There are good reasons (which does not mean they have to be accepted) and bad
reasons. (You might remember from your school days that teachers never accepted
any reason you gave when you were caught out.)
Give three reasons why abortion is wrong which you regard as bad and indicate why
you think them bad.
Your reasons might be something like:
(i) “It’s against my religion.”

(ii) “The mayor of my town told me so.”
(iii) “The mere thought of it makes me nauseous.”
Bad reasons are discussion blockers. Let us look at each of the reasons individually:
Reason (i) leaves nothing to discuss. Religious beliefs do not support the statement;
it gives some information about you as a person but is irrelevant. The only way to
proceed with the discussion will be to change the issue slightly, if possible, and get
information about your faith and the reasons for your opinion. This might, in the
end, lead back to the original topic.
Reasons (ii) and (iii) are also irrelevant but in different ways. Reason (ii) relies on
authority; in this case not an authority on the topic of abortion but on the views of
someone who is in authority. His opinion is not a reason why abortion is wrong. In
(iii) the reaction is a reference to your feelings, but people may feel as they like. Apart
from being unverifiable, feelings cannot support or refute an argument. Feelings are
irrelevant here. Although they reveal something about your reaction to the issue of
abortion, they do not provide any reason for why abortion is wrong.
Let us now look at the other side.
Give three good reasons in support of abortion.
(i) “It gives women a say over their bodies.”

(ii) “There are too many people on earth.”
(iii) “It is a necessary outcome of our human rights culture.”
(viii)
Welcome
Now let’s analyse each of the reasons:

Reason (i) is good because it lends support to the claim. However, it will not mean
the end of the discussion because this claim remains controversial. At least it keeps
the discussion open. Reason (ii) is valid but problematic because it introduces a
new theme which takes the discussion in a different direction. Nevertheless, is
not irrelevant and keeps the discussion open. Reason (iii) puts the issue in a wider
context. This argument may well mean the end of the discussion because it links
the issue with the Constitution of South Africa which is the supreme law. There
are still some outstanding issues and the discussion remains open even at this high
level of justification.
Against the above background we can now return to our earlier question of how moral
discussion should be conducted. The short answer is, as we saw in the foregoing,
by way of rational argumentation, by having claims which have to be substantiated.
Participants may then react in different ways to these claims. The discussion may
go like this:
“Abortion is wrong because it involves the destruction of life which is sacred.”
“What do you mean with life is sacred? Does it mean we are not allowed to
kill flies or mosquitoes?”
The answer may now be that the premise doesn’t actually support the claim. It might
also be necessary to tackle the side issue and then later on show its effect on the
central theme. And so the discussion develops. The ideal is some kind of consensus
or at least a workable compromise, but the outcome may also be that we differ but
tolerate each other – the matter remains open.
In conclusion, these background remarks are clearly not moral talk; we did not discuss
the moral problem of abortion. We talked about moral discussions on abortion. We
tried to clarify some of the aspects of that part of our lives which has to do with
right and wrong. This is ethical talk. Ethics is a consideration of our behaviour on
ordinary days. Ethicists try to find general patterns or conditions for the application
of right and wrong. They build moral systems which have to answer different
questions about moral judgments. In this study guide you will learn about some of
these systems – not as final answers to a lawyer’s moral dilemmas but to guide you
to get clarity about real problems and to provide you with insights to work out your
own answer which you should be able to defend in a morally acceptable way.
It should be clear that legal ethics is nothing but a specialised branch of ethics. Legal
practice has to do with morality both with reference to what it works with and with
the way in which it operates.
Lawyers are not mainly concerned with ethics but they cannot avoid it. To whet your
appetite, consider the following:
Attorneys practise under a code of conduct. Part of this code is the prescribed
fees an attorney may charge for services rendered. For example, for a phone
call on behalf of a client an attorney may charge R50. Imagine that you are an
attorney making a phone call on behalf of your client. The call took you less
than a minute because the person you were looking for was not in. Telkom
will charge you about R3 for the call. What will the amount be on your client’s
account? R3 or R50? Justify your answer in an ethically acceptable way.
With this in mind, we can now start with what professional ethics is really all about.
Good luck, we are sure you will enjoy this module!
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(x)
1 LEARNING UNIT 1
1 The Legal Profession
Recommended reading
Du Plessis LM “The ideal legal practitioner [from an academic angle]” 1981
De Rebus 424
ASSESSMENT CRITERIA
After studying this section you should be able to:
1. define the term “legal ethics”;

2. explain the purpose of professional codes;
3. explain criticism against professional codes;
4. explain how a profession differs from an ordinary job;
5. discuss the core values of a good lawyer.
WHAT IS THE MEANING OF THE TERM “LEGAL ETHICS”?

“Legal ethics” can be understood in a wide and a narrow sense.
In the wide sense, it refers in general to the relationship between law and ethics (or
morality). For example: May the law be used to enforce moral views on abortion,
homosexuality, prostitution or human cloning?
However, in the narrow sense, the term refers to the ethical standards of professional
conduct applicable to the field of law (as opposed to the field of medicine, for example,
in which case we would speak of “medical ethics” to refer to the professional conduct
required of medical practitioners). Legal ethics in the narrow sense therefore deals
with the “oughts” of providing legal services: “How ought a legal practitioner to
behave in order to be a good, decent and proper legal practitioner?”
In legal practice the term “legal ethics” is understandably generally used in its
narrow sense.1 We shall follow the general and established usage of the term “legal
ethics” in this module, which means that the subject matter will be restricted to the
professional conduct expected of legal practitioners in South Africa.
Ethics for attorneys in South Africa are regulated by the Attorneys Act 53 of 1979.
The whole of chapter III of this Act (ie ss 56–77) is particularly relevant to legal
ethics in South Africa. This Act governs the establishment of law societies. The law
societies, in turn, lay down binding rules for the members of the legal profession on
their registers. The law societies also lay down various rules which are intended to:
(1) protect and promote the legal profession
1 See, for example, Lewis EAL Legal Ethics: A Guide to Professional Conduct for South African Attorneys (1982).
LJU4802/1 1
(2) protect the individual legal practitioner
(3) protect and safeguard the interests of the client in the context of the relationship
between the lawyer and the client
The Supreme Court Act 59 of 1959 contains rules pertaining to the admission of
advocates, their authorisation to practise and their conduct. In terms of section 11
of the Admission of Advocates Act 74 of 1964, the power to make rules includes
the power to make rules in terms of the Supreme Court Act to give effect to the
provisions of the Admission of Advocates Act. The Rules of the Code of Conduct of
the various court divisions also govern the professional conduct of legal practitioners.
PROFESSIONAL CODES
Comprehensive codes of legal ethics were adopted in an attempt to maintain the
ethical basis of the legal profession. In general, a professional code of ethics suggests
a compilation of ethical values to provide practitioners in the legal profession with
a framework for the ethical practice of law. A code of legal ethics generally seeks,
among other things, to:
• protect the professional nature of legal services by stressing the obligation of

professionals to serve justice and the public
• correct the imbalance in the relationship between the professional and the client
• maintain public confidence
• protect the public against improper conduct or incompetence by prescribing and
guaranteeing the standards of skill, learning and conduct required
• provide practitioners and newcomers with broad parameters for making morally
responsible choices in testing situations
• ensure fair competition between legal practitioners
• discipline unprofessional behaviour
CRITICISM OF PROFESSIONAL CODES
“Insider” criticism
Practitioners are suspicious of codes of ethics and this suspicion concerns two
different aspects, namely (i) practical concerns and (ii) theoretical concerns.
(i) Practical concerns
Professional codes are not always enforced by law societies and those who transgress
them are not always dealt with effectively. Since many practitioners feel that the codes
are not properly enforced, they argue that the profession might as well abandon
them, or replace them with codes of business ethics. Others are afraid of upholding
ethical values and sticking to the rules when their colleagues are not. They fear that
by trying to encourage their clients to do the right thing, these clients may go to
somebody else who is willing to carry out their wishes.
(ii) Theoretical concerns
The very idea that the practice of law is a profession (and not merely a job in which
bureaucratic tasks associated with a business is executed) counters the idea that legal
2
LEARNING UNIT 1: The Legal Profession
ethics can be reduced to the “rules of ‘professional conduct’”. One justification for
the self-regulation of the profession is that the practice of law requires complex
professional judgments, the reasonableness of which can be judged only by fellow
professionals. Self-regulation presumes that the conduct of a practitioner will not
be judged against a code, but by colleagues who exhibit those virtues inherent in
morally good practitioners. The formalistic idea that legal ethics is no more than
the compliance with a legal code makes, in our view, a mockery of this justification,
reduces law to another business enterprise, and exposes the continued existence of
the law and bar societies as no more than agencies created to protect vested interests.
“Outsider” criticism
Outsiders (the public) feel that they have no access to a simplified, easily understandable
professional code, and hence do not know what conduct is regarded as unethical or
dishonest. They are, therefore, not able to lay complaints which may be investigated
by enforcing agencies (the various law societies or bar councils). Some ethical rules
are seen as protecting members of the profession against the public or serving only
the interests of members of the legal profession (eg the rules which create barriers
against competition from newcomers to the profession). Nor are the rules regarded
as having universal or timeless value. Rules sometimes change as times change. For
example, the rule that practitioners who write articles may not be identified in the
press with reference to their firms (which could be considered a form of touting) no
longer applies. The public furthermore feels that since complaints are handled by
colleagues of the accused in the legal profession, the latter will be protected against
accusations from the public. Practitioners are also reluctant to report colleagues to the
enforcing agencies and are often unwilling to testify against them during hearings.
If practitioners turn a blind eye to what their colleagues do, there is no way in which
the profession may be disciplined. The legal profession is consequently sometimes
regarded as “a conspiracy against the laity” or as an “unusually effective monopoly”.
ACTIVITY 1
• Find the Code of Conduct of the Law Society or the Code of Conduct for
Advocates in your area and read through it.
• Find the Code of Conduct for Legal Practitioners, Candidate Legal Practitioners
and Juristic Entities (this Code will only be implemented once the Legal Practice
Act is in force) and read through it.
• Are the arguments raised in the preceding section obvious in the different codes?
1 FEEDBACK
Cape Law Society: www.capelawsoc.law.za/
Kwazulu-Natal: https://www.lawsoc.co.za
Free State: www.fs-law.co.za
Northern Province: www.northernlaw.co.za
National Bar Council of South Africa: https://nationalbarcouncil.co.za
(1) Government Gazette, 10 February 2017 No 40610
LJU4802/1 3
(2) It was expected that you would address this question based on the code
that you would have had access to.
WHAT IS A PROFESSION?
The word “profession” is derived from the Latin professio which means “a public
statement” or “promise”. From this may be inferred that a legal professional (whether
an attorney, advocate, judge, magistrate, public prosecutor or legal adviser) should
be worthy of public trust, and should carry out his or her professional duties with
public-spiritedness and the highest standards of ethical conduct.
Although members of professions are paid for their services and should manage their
practices on sound business principles, the professions may be distinguished from
other jobs, businesses or trades, by virtue of the following characteristics:
• Professionals are required to have specialised intellectual knowledge and skills

before they will be granted access to their chosen profession. This knowledge,
which is not easily accessible to the lay person, puts the professional in a position
of authority vis-à-vis the client. The client has no other option but to trust the
professional and should therefore be able to rely on the latter’s integrity.
• Professionals are expected to have a commitment to promoting the basic good of
society. In the case of the legal profession, the basic good is justice.
• Professionals are expected to have a commitment to serving the public in
matters related to their particular field.
• Professionals enjoy relative autonomy in the execution of their duties. They
use their discretion in the execution of their duties and do not blindly accede to
their clients or other authorities.
• Professionals should have a willingness to accept personal responsibility for
their actions and for maintaining public confidence in their particular profession.
• Professionals share a sense of common identity and an established moral community.
• Professionals are self-disciplined and abide by a code of legal ethics based upon
what the best thinkers in their particular profession regard as proper conduct for
a member of that profession.
• The above standards of professional conduct are enforced by the profession itself
or by the courts, taking into account the views of the controlling body of the
particular profession.
To regard lawyers as no more than businessmen would mean that the idea of the law
and the objectives of justice, such as the fair and equal distribution of privileges and
responsibilities relating to property, liberty and life, would be thwarted. Only the
most profitable cases would then be accepted by practitioners, and only the rights
and privileges of those able to pay the high fees of legal services would be protected.
Justice would be denied to those who cannot afford to pay for it. Consequently, public
trust in the legal profession and the existing socio-political dispensation would be
undermined if justice were no longer served.
CORE VALUES IN THE MAKE-UP OF “THE GOOD LAWYER”

Values are, in fact, ideals which we strive to achieve; in other words, a good we
aspire to. The values we are going to discuss must be seen in this light; they are
4
aspirational values. Also, we cannot (cannot even hope to) compile and discuss
a complete set of these values. The idea of the morally good or virtuous lawyer is
in itself an aspirational value. All good lawyers need not look the same in terms of
values and value strength. We can expect a core of values in all of them but we must
allow for personal differences. We will discuss only three core values: honesty and
trustworthiness, good judgment and objectivity. These should give you an idea of
the values (virtues) we have in mind, what they entail, and how they are integrated
into the lives of lawyers.
Honesty and trustworthiness

In acting on behalf of the client, you have the obligation to be honest to the client,
to the court, to other lawyers, and to third parties and society in general.
honest To be honest is to be willing to disclose not only a part of but the whole truth you
know about a particular situation. Withholding some information, even for a good
reason, does not measure up to the requirement of full disclosure. You can avoid lying
by keeping silent, but in doing so, you fail to be candid. Consequently, you may not
claim to have acted honestly where you deliberately avoided making a full disclosure.
Furthermore, to argue that since professionals lie not in their own interests but in
the interests of their clients and that it, therefore, does not amount to dishonesty, is
problematic. In our opinion, to be an honest lawyer means to be ready and willing to
make a full disclosure at all times. An exception to this is your obligation to protect
the privacy of your client. The professional privilege of a client’s communications
is a legal doctrine which provides that professionals cannot be required to reveal
client confidences in a court of law. Underlying this doctrine is the notion that clients
would not be able to trust professionals who have violated the confidentiality of
their communications.
In order to be trustworthy and honest it is important for you as a legal practitioner

confl ict of to foresee and avoid a situation in which there is a conflict of interests. This may arise,
interests for example, where you have a financial interest in the subject matter of a case you
conduct. The point, though, is that you are in the first place under no obligation to
accept a client’s mandate. Therefore, it is your choice whether or not to abide by the
demands of trustworthiness and honesty in specific situations.
There is an essential connection between honesty and truthfulness. To be honest is

to be truthful. The obligation to be trustworthy and honest permeates all areas of
your relationship with others. This includes your relationship with other practitioners,
the courts and the public.
Good judgment
Recommended reading
Kronman AT “Living in the law” 1987 University of Chicago Law Review 835–876
In addition to the above, you as a legal practitioner should have a sense of equity and
fairness and be able to act impartially and exercise good judgment. (Equity refers to
the application of general law to the individual case in such a way that justice may
LJU4802/1 5
prevail). You should be able to judge matters objectively, carefully and deliberately.
You should possess the decision-making skills necessary to arrive at equitable results.
Kronman2 asks the following question: “Why should anyone care about being or
law as a career becoming a lawyer, or leading the life to which the choice of law as a career confines
one?”
In answer to this particular question, Kronman proposes that you choose law as a
career from among many other careers. You would choose neither the law nor any
other career if the choice were immoral or contrary to the moral convictions of
your community. For this reason Kronman suggests that it must be assumed that
the choice of a legal career is a morally permissible one. Once this point has been
established, Kronman focuses on why you would care to choose law as a career and
not on what you ought to do once you are a lawyer. Let us now turn to Kronman’s
findings.
He fi nds that many people enter the legal profession “because it offers great
opportunities for wealth and prestige”. Thus it is often the quest for money and
honour which prompts people to choose the legal profession. An honest admission by
those who choose the legal profession as an instrument for the acquisition of wealth
and honour may be criticised for being outright selfish. The core of this criticism is
that such a lawyer does not really care about the law in the first place. Rather his or
her concern for the law is subordinate to using the law as an instrument to acquire
those things that he or she values above all, such as a good life or prestige. It should be
remembered that lawyers who admit to choosing the legal profession for this reason,
do the same as many other people, whether or not they are in the legal profession.
This makes such lawyers rather ordinary and less than interesting. In fact, they are
in danger of working so hard in the pursuit of wealth and honour that they do not
find the time to live the kind of life they had envisaged. They often end up failing
to achieve their original objective, which was to use the legal profession as a means
or instrument for achieving their specific goals. Another reason why their using
the legal profession for selfish ends is problematic is that they run the risk of losing
their identity or personality. They would go through the motions of being lawyers
simply as required. In that case, their personality would soon begin to suffer because
they would be acting out of step with their true identity or personality. Kronman’s
argument in this connection is that to practise law well requires not only formal
knowledge of the law but certain qualities of mind and temperament as well. “To
be a lawyer is to be a person of a particular sort, a person with a distinctive set of
character traits as well as an expertise”.3 By choosing the law as a profession, one
tends to become a certain kind of person. Do you agree with this sentiment?
Public- What then are the character traits Kronman requires for you to be a lawyer and not
spiritedness
just a careerist without the soul of a lawyer? Public-spiritedness means that you choose
the legal profession based on your commitment to the public good. Although you
may have once considered law as the means to a selfish end, this time you intend to
use the law for more than that. In fact, the law is seen as a means or instrument to
promote and protect something outside and above yourself, namely the public good.
No doubt there are different meanings and views regarding the public good. The
important thing is to understand that it is possible and plausible to subscribe to the
“public good”. Kronman makes the following three points in this regard:
2 Kronman AT “Living in the law” 1987 University of Chicago Law Review 835.
6
• If you do not have a sense of public-spiritedness, you are to some extent a

“professional failure”. You are a failure because you are unable to recognise and
appreciate that along with your status and profession should come the promotion
and protection of the public good in a rather special way.
• Some of you may seek more than the general promotion of the public good. You
may find fulfilment by becoming involved in politics, for example. This should
not be contrary to the pursuit of the public good, but is rather a way of working
for the public good by placing special emphasis on political engagement.
• If you choose the legal profession purely for reasons of public-spiritedness, then
you regard law as an instrument for the attainment of some public good. Law
will then remain an instrument even though it might not be used for selfish
purposes. Thus the lawyer “who views his career merely as a vehicle for justice
or equality or some other public value bears a certain resemblance to the lawyer
who regards his career as a means. ... Both find the point of their professional
work in something that lies outside it, and both may be inclined to view their
choice of career as an accommodation to external necessity”.4
People are constantly faced with the need to deliberate upon situations and then
decide upon what they consider to be an appropriate course of action. Sometimes a
decision to act in a particular manner yields the desired result but sometimes it does
not. In the former instance, we can speak of the person acting on his or her good
judgment whereas in the latter, the person showed poor or bad judgement. Good
judgement is considered to be a virtue. Good or bad judgement is not the outcome
of following or disregarding the correct and consistent use of a particular theory
or drawing or, failing to draw, the only correct inference in specific circumstances.
Exercising your judgement, whether good or bad, involves a number of complex
and interrelated elements, including deduction and intuition. It has already been
stated that deductive reasoning is an indispensable element of forming a particular
judgement. But in itself it is not sufficient since not all situations allow for a single
conclusion or decision. Intuition is also an indispensable element in forming a
particular judgement.
intuition Under intuition Kronman understands “a form of direct insight or apprehension

distinct from any species of understanding at which you are able to arrive by reasoning
alone.” Intuition does not involve reflection. To have an intuition is simply to see that
something is the case, to apprehend its obviousness in the same direct way that you
apprehend, for example, the physical shape of the room in which you are at present
sitting.5 However, to understand judgement as intuition can be discouraging in the
sense that the non-reflective character of intuition means that either you have it or
you don’t. Intuition is therefore a disposition or talent. It cannot be acquired by
some special effort.
It is also misleading to understand judgement as being based on intuition only.

The problem is that in everyday life people are required to give reasons for their
judgement. In this case deductive reasoning assumes an important role. However,
if intuition is used either to complement or replace deductive reasoning, it becomes
difficult to attach the qualification “good” or “bad” to any judgment. It is therefore
misleading to understand judgement as intuition only. Furthermore, if judgement is
understood solely as intuition, then it becomes difficult to establish the connection
between an individual’s character and intuition.
5 Kronman AT “Living in the law” 1987 University of Chicago Law Review 847-848.
LJU4802/1 7
The reasoning behind this is that since intuition is a gift, those without such a gift
cannot develop a virtuous character through their own efforts. On what basis then
may the legal profession, for example, demand specific character traits under the
rubric of a “fit and proper person”? This question points to the need to modify and
qualify the assertion that judgement is a form of intuition.
This is what Kronman does next. According to him, judgement demands that we
picture or imagine the situation in which we will find ourselves should we take a
double particular decision. The projected situation is a picture of a double relationship. In the
relationship first place, the projected situation involves our relationship with ourselves. In order
to make the transition from an imaginary to a real relationship with ourselves we
must answer the question: “Can I live with it?” The meaning of this question is
incomplete until we understand that the “I” involves both the individual and those
in his or her network of relationships. The other people involved in the imagined
situation form the second arm of the double relationship. Therefore “I” must take
into consideration both my feelings about the projected new situation and the feelings
of those with whom he or she will interact. In the words of Kronman, compassion
or empathy is a crucial element when making a judgment. To be able to deliberate
with empathy towards ourselves and others with whom we have a relationship, it
is necessary to assume a separating distance. The “I” in the present situation must
be separated or distanced from the future “I” existing only in the imagination.
Similarly, the present network of existing relationships must be distanced from the
“detachment” future network of relationships. Kronman uses the word “detachment” to describe this
situation. “The person faced with a hard choice must give each alternative its due;
he must entertain all the possibilities by feeling for himself what is most attractive
in each. But he must do this while withholding his commitment to any”.6
deliberation On this basis, Kronman proffers his definition of deliberation:
Deliberation is neither deduction nor intuition. It is the compassionate survey

of alternatives viewed simultaneously from a distance, and those who show
excellence in deliberation and whose judgment we value are the men and
women best able to meet these conflicting requirements and to endure the
often considerable tension between them.7
As Kronman understands it, deliberation culminates in the making of a specific

choice. This means, for example, that on the basis of deliberation you may choose
either to remain in the present thereby rejecting the imaginary new situation of the
future or to do the opposite, that is, reject the present and turn the imaginary new
situation of the future into your actual reality. By choosing the one or the other,
you are basically answering the question: “Can I live with it?” The answer is very
important because it may result either in the enrichment of personal integrity or in
personal disintegration and regret. To be able to live with yourself, to show “fellow-
feeling” towards yourself through the choices you make, is a mark of good judgment
which leaves you pleased and satisfied to live by such a judgment.
This is the core of integrity. But choosing what you cannot live with is the mark of
bad judgment and leads to the destruction of your integrity, sorrow and remorse.
Kronman then proceeds to argue that the above elements of judgment also apply
in the sphere of politics. For our purpose the important point to note is that the
8
legal career is situated and functions in the context of politics. The professional
lawyer should therefore possess the above-mentioned qualities of good judgment.
It is insufficient simply to know the law well enough to apply it as an instrument
in the pursuit of selfish ends. In the political context, justice – be it retributive or
distributive – is always an integral part of the public good. It is in this sense that the
standard of a “fit and proper person” enjoins the professional lawyer to pursue and
preserve the public good in the name of justice. Accordingly, it is a mark of bad
judgment to enter the legal profession solely in search of wealth and prestige
at the expense of justice and the public good.
One of the main responsibilities of a judge is to preserve the community of

law, to discover and articulate the conditions under which political fraternity
is possible. It is the judge’s direct responsibility to do this; he must attend
to the community of law, to its construction and preservation, and cannot
simply assume that it will come into existence as the indirect consequence
of what he does by means of an invisible mechanism of coordination. ...
[T]o be a good advocate, then, one must be in the habit of looking at one’s
own case from a judicial point of view, and since a judge’s direct concern is
with the community of law, an advocate who sees things from the judge’s
perspective and attends to his concerns will be careful to frame his own
arguments so as to emphasize the congruence between his client’s interests and
the interests of the legal community as a whole. ... It is only when an advocate
has acquired the character trait of good judgment that he can be confident in
his ability to see the world of legal disputes as a judge would see it and hence
to distinguish wise arguments from merely clever ones. Advocates who do
not possess this trait of character may be knowledgeable about the law and
quick in argument, but their lack of judgment is a liability: it makes them less
effective than they otherwise would be.8
Objectivity
Recommended reading
Du Plessis LM “The ideal legal practitioner (from an academic angle)” 1981
De Rebus 424–427
Objectivity is closely related to good judgment and also to honesty. It requires that
no irrelevant considerations should be brought to bear upon your judgment, which
implies not only a keen logical sense but also good preparation so as to know what
emotions is needed. In this regard your emotions should definitely be blocked out. You should
not be influenced by emotions which come out in cases or interviews. According
to Du Plessis9 absolute objectivity is probably not attainable, but you should at least
recognise your own disposition, preconceptions and subjectivity, and should be able
to distinguish facts from emotions. Subjective influences should be bracketed, that is,
consciously put out of play. This is where honesty, particularly to yourself, plays a role.
9 Du Plessis LM “The ideal legal practitioner (from an academic angle)” 1981 De Rebus 425.
LJU4802/1 9
ACTIVITY 2
According to Kronman, good judgment is not based on intuition only. What else
is it based on? Discuss.
2 FEEDBACK
(1) Your discussion should grapple with the multifaceted nature of good judgment.
SELF-ASSESSMENT
Most legal practitioners run their practices like a business. This seems to blur the
distinction between a profession and any other job.
Do you agree with the statement made above that a legal profession is not just a job?
Motivate your answer and make reference to the preceding section.
10
2 LEARNING UNIT 2
2 Philosophical approaches to ethics
ASSESSMENT CRITERIA
After completing this section you should be able to:
1. discuss and compare the different philosophical approaches with each other;
2. explain which philosophical approach is currently followed in our legal system;
3. argue for another philosophical approach that could change the current
situation for the better;
4. explain why virtue ethics could make a difference in lawyers’ lives;
5. show how a communitarian or African view can be incorporated in the legal
world;
6. explain the effect of a post-modernist approach to legal thinking.
Legal ethics involves the philosophical study of the moral experience of the good
lawyer. The question is how the legal profession’s self-understanding or ideal of the
good lawyer may best be described or captured.
The professional ideal of the good lawyer may be approached from different ethical
perspectives. For example, from a rule-based perspective the good lawyer is recognised
by his or her sense of duty; from a virtue-based perspective by the virtues or type of
character he or she has; from a consequentialist (utilitarian) perspective by the types
of consequences he or she effects, and from the perspective of the postmodern ethics
of difference by his or her sense of absolute responsibility to “the other”, beyond
the limits defined by established rules, desired consequences or existing character.
Suggested readings
Nicolson D and Webb J Professional Legal Ethics: Critical Interrogations (1999)
Menkel-Meadow C “Portia redux: another look at gender, feminism and legal
ethics” in Parker C and Sampford (eds) Legal ethics and Legal practice:
Contemporary Issues (1995) (Oxford University Press)
Mnyongani F D “Duties of a lawyer in a multicultural society: a customary law
perspective” 2012 Stellenbosch Law Review 35.
Metz T “Towards an African moral theory” 2007 Journal of Political Philosophy 321.
Buchanan J M “Ethical Rules, expected values and large numbers” 1965 Ethics 1.
Freedman M H “Religion is not totally irrelevant to legal ethics” 1998 Fordham
Law Review 1299.
RULE-GOVERNED ETHICS (DUTY)

Rule-governed ethics is based on the idea that in order to judge human conduct,
it is necessary to establish first the ethical rule governing particular conduct. The
ethical rule then takes precedence over everything else, such as the consequences
of the conduct. The rule has two qualities. It prescribes what ought to be done in
LJU4802/1 11
duty order to qualify as morally good, and the rule must be accepted as a duty. Once the
rule is accepted as a duty, then you have the obligation to obey it. The ethics of duty
is also known as deontology (deontic ethics).
Kant Immanuel Kant (1724–1804) is one of the most famous exponents of the ethics of
duty. According to Kant, the first principle is that in any ethical situation you should
act in the same way you would have others act in a similar situation. You always
have to treat others with respect, and may never regard a person as a mere means to
an end. You should treat others in such a manner that you can always justify your
universalising conduct towards them. This implies universalising your action or conduct because for
Kant actions are morally good if they are the actions of everyone else. Universalising
a morally good action imposes the duty on all to do the same for no other reason
than because it is your duty. But freedom of decision (which exists next to causality)
is always a pre-condition. Since moral goodness is the reason for the duty, it is
necessary for everyone to accept and obey it. Obedience is necessary because moral
goodness is desired by everyone. Kant calls this first principle of deontic ethics the
categorical categorical imperative.
imperative
However, Kant is also aware that at times people do act contrary to the categorical
imperative. In such situations people either put the ethical rule completely aside or
downgrade it. When a rule is secondary, the moral goodness of an act is weakened
in the sense that it is no longer the decisive criterion. People then act according to
hypothetical what Kant calls the hypothetical imperative. For example, if you consider that it is morally
imperative
good to be kind to others then you must be kind to others at all times for the reasons
that kindness is morally good and therefore a duty. This conduct is in accordance
with the categorical imperative. But it is possible, for example, that the air hostess
who is full of smiles and exudes kindness in the aircraft does so not because she
holds kindness to be morally good, but because she has been trained to be kind for
the sake of the airline as well as her own job. Her being kind then is conduct arising
from the hypothetical imperative: If I am not kind, it is likely that our airline will
lose customers and the loss of customers will be a threat to my own job.
professional rules Practitioners are members of a profession and are governed by professional rules. They
are obliged to comply with these rules and to fulfil minimum ethical obligations,
“morality of whether they like it or not. They have a “morality of duty”. Failure to abide by the rules
duty”
brings about sanction. The conduct of lawyers who merely meet these minimum
standards has been described above as formalistic, positivistic and legalistic. Such
conduct would, in terms of Kant’s philosophy, fall in the hypothetical imperative
category. They do not act ethically because they hold this to be morally good but
because they have been trained in this manner, and because it will be good for their
practice and for the profession as a whole. However, according to the categorical
imperative, lawyers should expect more from themselves and from colleagues than
merely abiding by professional rules out of prudence or fear of punishment (as
opposed to a sense of duty). In short, formalists cannot rationalise that they follow
Kant because for Kant moral discussions are very important; every such discussion is
a free decision for humanity as a whole. Rule-based ethics is haunted by the difficulty
of explaining the origin of the moral sense of duty or respect for the law which it
takes to be the key to ethical conduct. What sustains the motivation to obey the
Critics law out of a sense of duty? Critics of rule-based approaches to ethical conduct claim
that this approach cannot prevent a merely legalistic or instrumental approach to
the rules it holds dear (like the approach of Holmes’s bad man). Kant is an example
of taking the rule deeper by building his duty ethics on a fully worked out moral
theory and the theory about the nature of the human being.
12
LEARNING UNIT 2: Philosophical approaches to ethics
Although Kant formulated his rule base approach many years ago, it is still relevant
Currently our today. Currently our South African legal system is based on a rule-based approach, meaning
South African
legal system that lawyers have to follow the rules of court or their respective codes of conduct
in order to act ethically. Therefore, one can say that our traditional approach, the
current philosophical approach in the legal profession, is rule based. Do you agree?
The traditional approach to legal ethics: rule-based

If ethics is understood as the philosophical reflection on morality, is “legal ethics”,
as it is usually used, not a contradiction in terms? Is there not a fundamental clash
between, on the one hand, the reflective activity of ethical philosophers (ethical
reflection) and, on the other hand, the activities of practical lawyers (law as activity)?
At the very least it would seem that (some) lawyers are indeed not interested in moral
philosophy or ethics but are, in accordance to their legalistic mindset, only interested
in the prescriptions regulating their conduct as legal practitioners (ie no touting, to
charge prescribed fees, to address a judge as “my Lord”, etc). This is the approach
which has been adopted in the leading South African textbook on legal ethics.10 In
Lewis this book, Lewis opens with the statement that ethical philosophy does not form
part of his study, and that it is not necessary to plunge into the philosophy of ethics
because the purpose of the book is to set out the rules of conduct which an attorney
is required to obey. Furthermore, he contends that a code of rules prescribing conduct
for attorneys is as much a part of the positive law as any other field of law and can
be objectively described without concern for a deeper philosophy or history behind
this code. What is needed, according to Lewis, is an “entirely practical” approach
to the professional conduct of legal practitioners.
positivistic We believe that such a practical and positivistic approach to the ethical conduct of legal
approach
practitioners is one of the main reasons for the growing crisis in the profession.
Is the traditional approach to legal ethics ethically acceptable?

Now let us return to the question with which we started above, namely whether
or not “legal ethics” (as it is used by Lewis and other lawyers) is a contradiction in
terms. Lewis’s attempt to reduce ethics to a code of conduct which lawyers must obey
creates some doubt about whether he should be using the term “ethics” to describe
his project at all. Indeed, many ethical and legal philosophers have found nothing
Shaffer of value in the way lawyers approach ethics. Thus Shaffer 11 states boldly that “most
of what American lawyers and law teachers call legal ethics is not ethics. Most of
what is called legal ethics is similar to rules made by administrative agencies. It is
regulatory. Its appeal is not to conscience but to sanction. It seeks mandate rather
than insight.” This critique raises the following questions:
(1) What is “ethics” if it is not what lawyers usually have in mind when they speak
about “legal ethics”?
(2) What is the relation between ethics and a code of conduct?
(3) Why does the legal profession adopt this apparently narrow view of ethics?
By asking these questions, we have entered the field of ethical and legal philosophy
which Lewis tried to avoid in his practical approach to legal ethics. In contrast we
10 Lewis EAL Legal ethics: A guide to professional conduct for South African attorneys (1982).
11 Shaffer T “The legal ethics of radical individualism” 1987 Texas Law Review 963.
LJU4802/1 13
argue that both ethical and legal philosophies are of decisive importance in both the
study of practical legal ethics and the application thereof. Consider the following
statement by Coquilette:12
An individual lawyer’s attitude to legal rules, [i.e. his or her legal philosophy]
including the disciplinary rules governing the legal profession itself, is central
to that lawyer’s approach to moral responsibility. Some lawyers see the positive
rules as defining the four corners of moral responsibility, and also will comply
strictly with these rules even when personal spiritual or cultural values are
jeopardized. These lawyers are true believers of the positive legal mentality as
representing the democratic and objective legal norms of our society, and they
will see spiritual or cultural values as far too “subjective” and “individualistic”
to provide reliable guides to conduct. Lawyers with a sceptical view of human
nature will also put a high premium on enforcement of these positive rules
through coercive punishments by boards of bar overseers. Other lawyers will
see the positive rules as secondary, and even subordinate, to spiritual and
cultural sources of ethical guidance.
Coquilette Coquilette makes two important points concerning the positivistic or rule approach.
Firstly Firstly, a lawyer with a formalistic and positivistic approach to law or legal philosophy,
(ie one who understands law as a closed and coherent set of rules or principles) will
also tend to understand his or her ethical responsibilities as a question of complying
strictly with a codified set of legal rules. These rules will then fully prescribe what he
or she may or may not do in a given situation. This kind of lawyer will understand
ethics as a question of complying with general rules. It may also be said that such a
lawyer will adopt a Kantian or rule-based or deontological approach to ethics (see
the discussion below.) The point to be stressed is that the legal philosophy of the
lawyer will influence his or her understanding of his or her ethical responsibilities
Secondly as a lawyer. Secondly, a formalistic approach to ethics will tend to focus on those
minimum standards and rules which could be strictly enforced by law societies. A
lawyer adhering to a rule-based or formalistic approach to law would be adopting
the same approach to the ethical demands of the profession as that which Holmes13
once suggested lawyers should adopt towards the law in general:
If you want to know what the law is [and this would include the law or rules
of professional conduct], you must look at it as a bad man, who cares only for
the material consequences which such knowledge enables him to predict, not
as a good one, who finds his reasons for conduct, whether inside the law or
outside it, in the vaguer sanctions of conscience.
We have stated above that we believe that this philosophy or approach to the ethical
responsibility of practising lawyers is highly problematical and, in fact, that it is one
of the reasons for the ethical crisis in the profession. In short, this attitude is in
essence contradicting.
More or less the same points have also been made by other critics of the dominant
Ross practical approach to legal ethics. Ross,14 for example, mentions that the technical
application of “the law” in interpreting ethical rules leads to a very narrow moral
universe. It emphasises the use of logical or rational thought without giving proper
concern for values.
12 Coquilette DR Lawyers and Fundamental Moral Responsibility (1995):61.

13 Holmes OW “The path of the law” 1997 Harvard Law Review 991 at 993.
14 Ross Y Ethics in Law: Lawyers’ Responsibility and Accountability in Australia (1998):26.
14
From the perspective represented by Shaffer, Coquilette and Ross, it is ironic that
“legal ethics” has traditionally been discussed without any reference to “ethics”.
According to all three of them, this state of affairs can be attributed to the legalistic
and formalistic attitude of lawyers in general.
Think again about the challenge in the introductory study unit concerning the
amount to be charged for a telephone call. If you argued that you will charge
R50 because the prescribed fees allow it – you subscribe to the rule-based
approach.
In light of the above formalistic and legalistic approach, we conclude that any
discussion of “legal ethics” should begin by bringing to light the philosophy of law
and ethics upon which it rests. For this reason we shall discuss the major current
philosophical approaches influential in ethics. When law and ethics are approached
from this wider philosophical perspective, it soon becomes clear that the legalistic or
rule-based approach to ethical responsibility frequently results in a strangely unethical
approach to legal ethics amongst lawyers. Ethical philosophy suggests that ethical
responsibility involves much more than or even something completely different
from strict compliance with rules.
role- A legalistic or rule-based mindset leads to role-differentiated behaviour (see Unit 4)

differentiated
behaviour between lawyers and clients. Their relationship is stripped of all moral depth and
public or civil responsibility and becomes driven by Holmes’s bad-man’s perspective
on the law: Nothing is relevant to this relationship other than a knowledge of the
rules which the lawyer (the “bad man”) knows will be enforced and which will
impact on his or her clients to achieve his or her objectives. Many critics of this
type of lawyer-client relationship suggest that a richer, more rewarding and ethically
defensible lawyer-client relationship is possible if the legalistic mindset is discarded.
For example, consider what happens if rules are no longer the bottom line of the
relationship, but concern and care or the virtue of good judgment.
On the basis of these critiques of the legalistic mind-set dominating legal practice
today, Ross makes the following claim with reference to Australian legal practice:
Thus there are two alternatives to legal practice. One is the present lawyer-
client model – the professional “realistic” approach. The other is to place
our work in a truly moral context. The former leads to the present inhumane
system that now prevails. The latter leads to an environment where one can
be human; where one can reconcile being a good lawyer with being a moral
or virtuous person. 15
The same applies in the South African context.
ACTIVITY 3
(1) Explain the difference between the categorical and the hypothetical
imperative.
(2) Does a rule-based conception of ethics provide us with any assistance in
our quest to understanding what ethics is or should be?
15 Ross Y Ethics in Law: Lawyers’ Responsibility and Accountability in Australia (1998):47.
LJU4802/1 15
3 FEEDBACK:
(1) See the discussion on Kant at the beginning of the learning unit.
(2) It was expected that in your answer you would make reference to the views
of Lewis, Shaffer, Coquilette and Ross.
UTILITARIANISM (CONSEQUENTIALISM)
outcomes Utilitarianism may be considered as one of a number of outcomes or purpose-oriented
or teleological theories of ethics. The basic idea behind teleological theories of ethics
is that, ultimately, the only thing that is relevant in determining whether or not an
action is right or wrong is the purpose which the action is intended to achieve. Here
consequence purpose is understood in the sense of end-result or consequence. Hence, teleological
ethical theories are often called consequentialist. Moral judgment in the case of
utilitarianism boils down to the decision whether or not a given result is useful. A
useful result is one that induces and promotes the greatest happiness of the greatest
number in society.
Jeremy Bentham Jeremy Bentham is a famous legal philosopher who argued that the whole of the legal
system should be based on the utilitarian idea that all laws should aim to achieve the
greatest good greatest good for the greatest number. Usefulness is the criterion of moral judgment here,
for the greatest not a sense of duty and respect of legal rules as in Kantian or rule-based ethics. The
number
condition “of the greatest number” is very important. Getting someone accused of
murder off the hook is ethically speaking not good because that will make only the
two of them happy whereas the rest of the community will be unhappy
problem The problem with utilitarian ethics is that, on the one hand, there are no clear-cut
criteria for usefulness – to introduce the happiness of the greatest number is to only
replace the problem of the criteria for happiness and the greatest number. On the
other hand, not everything that is useful is by necessity right. There are useful things
that may be ethically wrong, for example the abuse of scientific and technological
processes. Also, a person’s objective may not be realised, for example, someone
who jumps into a river to save a drowning child may be too late. Nonetheless, his
attempt is evaluated as morally good. The question arises whether any means may
be used to achieve the happiness of the greatest number or in pursuit of a good
purpose. Whereas some ethicists hold that the end justifies the means, others hold
the opposing view that the end does not always justify the means. To hold that the
end justifies the means would mean, for example, that if a lawyer is convinced of the
innocence of his or her client, he or she may lie in court or even plot the murder of
the judge in order to vindicate his or her client’s innocence. In other words, although
the outcome is an important aspect of judging an act as good or bad, people are
also held responsible for what they bring about or fail to bring about, how they do
it and why they do it.
Markovits Markovits gives the following interesting example of utilitarianism: A dictator who
20 prisoners is holding 20 prisoners captive gives Jim the following choice: he must kill one of the
prisoners or the dictator will kill all 20 of them. If Jim kills one prisoner, the lives
of 19 people will be saved. If Jim refuses to kill one prisoner, it will be to nobody’s
advantage, because all 20 of the prisoners will die. From a utilitarian perspective, the
choice is clear: Jim must kill one prisoner, since this will have the best consequences.
According to this view, each individual’s well-being carries equal weight, so that,
obviously, the well-being of the 19 whose lives are spared will carry more weight
16
than that of the one whose life is sacrificed. It is a matter of simple arithmetic: Jim
must reduce the number of murders: more murders are worse than fewer murders.
“According to the utilitarian version of consequentialism, therefore, each person
ought always to adopt the course of action of those available to him that contributes
the most well-being to the world”.16 The fact that Jim’s conduct will place his own
moral integrity in jeopardy and that the murder of one captive remains wrong, is
of no consequence. It is clear that this approach does not hesitate to use people as
a means to an end. One of the prisoners is “used” to save the lives of 19 others –
something Kant would not have approved of.
In the context of legal ethics, professional guidelines as such could also be justified
on utilitarian grounds. They are useful in that they help the practitioner to avoid
errors that could lead to disciplinary action. They are there to satisfy clients so that
the practitioner’s practice may benefit. They may even help to improve the public
image of the profession and promote the public perception that the professions
are regulating themselves properly, thereby avoiding government regulation. The
requirement that a lawyer must have good moral standing before admission, for
example, not only protects the public, but also the profession’s interests and image.
An unethical lawyer brings the whole profession in disrepute. Character screening as
well as censure for those who break the rules are seen as useful tools in preserving
professionalism. However, by granting all this, we are not saying utilitarianism is
the final answer to legal-ethical worries. As indicated above, our ethical concerns
are not limited to results; motives are also important. Moreover, the application of
any rule requires that the context be considered too. Ethical evaluation cannot be
reduced to the mindless application of a number of rules formulated to result in a
desired outcome.
Even when professionals go beyond the ethical minimum expected of them by

professional guidelines and aspire to be highly ethical, one could argue along utilitarian
lines that the consequences of their action may be increased material reward and the
esteem and respect of their community.
ACTIVITY 4
You are instructed to transfer erf 109 in Tembisa. Your client, the seller, signs the
transfer documents and leaves SA for business purposes. The documents describe
the property incorrectly as erf 190, and are rejected. In terms of the Registrar’s
Circular, any rectification of an erf must be fully initialled. Your client is expected
back in SA only in three weeks’ time and the delay will cause him considerable loss
of interest on the sale price. Would you place his initials on the power of attorney,
thereby saving him thousands of rands?
4 FEEDBACK
Based on a utilitarian approach, your answer is most likely to be in the affirmative.
Why? Is that ethical though?
16 Markovits D “Legal ethics from a lawyer’s point of view” 2003 Yale Journal of Law & The Humanities
229.
LJU4802/1 17
VIRTUE ETHICS
In ancient Greek philosophy, virtue was regarded as an excellence (arete). Consequently,
from the perspective of ancient Greek philosophy, all ethics are virtue ethics. For
Aristotle example, Aristotle did not base his ideas about ethics on rules that had to be obeyed,
but on excellence of character. Virtue allows the virtuous person to flourish, because
a person’s ethics and his or her personal success are intertwined. “Ethics is about
forming and satisfying appropriate ambitions and desires”.17
Aristotle described the kind of person you should strive to become and all character
traits which were regarded as virtuous. When deciding how to act the question is
not simply what the rules prescribe, nor what would be useful to achieve, but what a
good moral person of good moral character would do in the same circumstances. Such a person will
character seek to act with virtue in a moral crisis which Aristotle defines as the mean between
two vices. Therefore, in the sphere of fear and confidence, rashness is a vice of excess
two vices and cowardice a vice of deficiency. Between the two vices lies the virtue of courage.
Hence the moral demand to always act in a courageous manner.
According to Aristotle, some of the virtues essential to a perfect life can only be
public affairs developed by participating in the public affairs of the state. A life spent in pursuit of
private affairs (work and family) would be a life deprived of an essential component
of the good life. It is only by living the life of an active citizen that one may develop
all the moral and intellectual virtues fully. Aristotle described man as a zoon politicon
political animal – a political animal – to whom participation in public life and debate was only natural.
He believed that the bios politikos – a life devoted to public-political affairs of the
polis – was the highest level of life that could be attained. To take part in public life
demanded courage. The courage to stand up for your beliefs is, therefore, virtue par
excellence. The public realm was permeated by a fiercely competitive spirit, where
individuality and human excellence could be demonstrated by being courageous.
The citizen who lived his life in the public realm lived the truly “good life” which
was far better and more virtuous than an ordinary life. (According to Aristotle, only
Greek men Greek men were destined by nature to the life of an active citizen. Women, slaves and
workers were excluded from public life).
Contemporary virtue ethics is in part a revival of Greek thought. It is focused on

questions such as: What makes a particular human quality a virtue? What is the
relation between being a virtuous person and doing the right thing? The crucial
point about contemporary virtue ethics is that it centres on the search for the specific
virtue (excellence) required in order to act ethically in a given situation. The mode of
conduct to adopt in a given situation is determined by the type of person you want
to become or the excellence or virtue you want to embody and not by what a rule
prescribes or what results you want to achieve.
Kronman Anthony Kronman is one philosopher who has adopted a virtue-based approach
to the ethical conduct of lawyers. He suggests that a life in the law is valuable not
because of money or status but because of the unique type of person or character
it allows the lawyer to become. The primary virtue of lawyers is the ability to make
good, reflective judgments.
In Aristotle’s philosophy, man could strive to become more virtuous, and most virtue
ethicists claim that virtue is inherent and consistent in all people and can indeed be
223.
18
developed. Some virtue ethicists maintain, however, that the possession of specific
virtues is a natural gift. Virtuosity is a talent that you may or may not have. A talent
is something that you have by chance. Therefore, it is something that you cannot
learn or acquire. You either have it or you don’t. Therefore, virtue cannot be learnt.
Now if virtue cannot be learnt, it should follow that those who are not gifted with
virtue cannot be expected to act ethically. That being the case, critics of virtue
ethics conclude that virtue cannot be the foundation of ethics and morality, or that
if virtue is indeed the foundation of ethics and morality, then only those who have
the natural gift of specific virtues may be subjected to moral judgement.
ACTIVITY 5
You have to defend a patient who is charged with contravention of the National
Health Act 61 of 2003. Your client is a young woman in her early twenties. She
has been a dialysis patient for the past 10 years and bought a kidney from a poor
man who needed the money desperately to buy medicine for his sick child. After
the transplant the woman enjoys good health and can even have her own chil-
dren. She is accused of violating the Act which prohibits the buying and selling of
human organs. You advise her to plead guilty and then you will argue mitigating
circumstances.
(1) What will your arguments be if you follow Kant’s arguments?

(2) What will your arguments be according to the utilitarian approach?
(3) How should a virtuous person approach this issue?
FEEDBACK
If you follow a rule-based approach, the sale of an organ should be condemned
as the National Health Act prohibits the buying and selling of human organs.
From a utilitarian point of view, it could be “the greatest joy for the greatest number”,
meaning the poor man will have money to buy medicine for his sick child and the
patient will get a new lease of life.
FEMINIST ETHICS
Feminist theories posit that there is a gendered approach to ethics, meaning that
women approach ethical challenges differently to men. The argument goes on to
say that now that the once male-dominated profession has opened its doors to
women, a case can be made that women bring with them a different approach to
the practice of the law and, therefore, to ethics. When confronted with what to do
in a given challenging situation, women are less likely to make statements about how
rules should determine the right and wrong of the situation. The difficulty with this
approach, as some scholars argue, is that it has the potential to create a dualistic
and oppositional conception of gender. The concern is that putting an emphasis on
gender differences may have the effect of legitimising the discriminatory treatment
of women. Debatable as this may be, the fact that the experience of women has been
overlooked for many years cannot be discounted. Whether feminine experiences
play a role in ethical decision-making is a subject of great debate.
LJU4802/1 19
A number of feminists argue that the influx of women into the legal profession
“Feminine” traits might bring about significant changes in the practice of law. “Feminine” traits such
as empathy, care, nurturing and social commitment may transform legal ethics and
processes as well as the image of the typical legal professional.
POSTMODERN ETHICS
Postmodernism is a reaction by contemporary thinkers against the Western scientific
model of rationality first applied in 17th-century Europe. Although postmodernity is
the proper context for the discussion of postmodern ethics, we will skip a detailed
discussion of the “postmodern condition” here. Instead, we will give an outline
of the features of the postmodern condition and focus upon their impact on and
relationship with the law.
universal
morality One of the characteristics of postmodernity is the view that universal morality has come
to an end to an end. A single and universal ethical code applicable to and binding on everyone
at all times is not part of postmodern ethical thinking. Particularly the Kantian
Diversity model of the categorical imperative, which used to guarantee a rational basis for all
ethical thinking, is attacked. Diversity confronts the postmodern human being in all
aspects of life (in food, in clothing, in entertainment, in international travel, in the
international media). The challenge is how to deal with diversity or difference. A
problem associated with this challenge is that diversity is not a given at all times.
Uncertainty Nor is it immutable. Uncertainty and unpredictability not only underlie diversity, but
permeate it as well. Therefore, the moral domain for the postmodernist is the terrain
of uncertainty. This leads to the question whether it makes sense to try to seek and
determine rules (or absolutes) in a situation that is fundamentally uncertain, flexible
and consequently indeterminate.
characterised In short, postmodernism is characterised by
(1) the demise of the belief in the universal validity of a particular (Western)
life-style or morality;
(2) the celebration of difference;
(3) the rejection of absolutes as well as universals; and
(4) the recognition of the necessity to accept uncertainty and indeterminacy as
a way of life.
In light of the above, the question arises whether it is possible to have law in
postmodern times. From a rule-based perspective, law is underpinned by universal
rules and principles which can be applied to all situations. Law constitutes and
establishes a sole, definite and authoritative point of reference in terms of which
human conduct is judged. However, this is precisely what postmodern ethics denies
and rejects. This is the reason why we end up without a substantive moral or ethical
uniqueness code for the postmodern period. The uniqueness of every situation or the differences in
every person cannot be accommodated by general or universal rules. To be receptive
to otherness and difference in a truly open, pluralistic and democratic world, practical
norms cannot take the form of general rules or principles (as Kant claimed).
The ethical response to somebody’s otherness and difference can never be reduced
to the legal response which the law prescribes. In this context ethics acquires a new
meaning. Ethics is no longer the substance or content of law, politics and morality, but
becomes a warning flag. It reminds us of the fact that no legal or rule-like response
to a new situation can ever be a fully accommodating or just response. Ethics can
20
therefore only point to what is not yet or what is not justice. It cannot state what justice
is or prescribe a substantive content to our laws or morality. Ethics reminds us that
it is never sufficient to follow universal rules or to achieve universally beneficial
consequences, or to develop virtues universally found in good human beings. It
encourages us to remain aware of the hidden violence in the particularity of things,
situations and people that such appeals to universality contain.
Ethics, as a result, emphasises the paradoxical nature of morality and law. Without
rules, there is a threat of anarchy, which would make any claim to justice impossible
(rules make justice possible). In rules there is a threat of bureaucratic rigidity, which
would make justice towards unique persons in unique situations impossible (rules
make true justice impossible).
That postmodernism has raised important points and opened up interesting

perspectives, especially for us living in a multi-cultural context on a continent widely
different from Europe, cannot be denied. It is, in addition, interesting to notice
that the proponents of postmodernism use the same universalisation style that they
criticise. The truth must lie somewhere between the two extremes.
In the discussion above, we saw that the moral character of conduct is determined,
depending on the ethical philosophy which is adopted, by either the obedience to
rules out of a sense of duty or the consequences which will flow from the conduct, or
by the qualities of character which are exhibited and strengthened by the conduct in
question (including those character traits which feminists claim have been neglected in
male-dominated Western societies), or by the nature of the response to the uniqueness
or differences encountered in plural postmodern societies.
AFRICAN COMMUNITARIANISM
The concept of Ubuntu has become a short-hand for everything which African
philosophy embodies. With the exception of Liberia and Ethiopia, most African
countries have over the years had some interaction with foreign cultures and traditions.
Colonisation coupled with the activities of the missionaries had a huge impact on
the cultural practices of Africans especially in Sub-Saharan Africa. In South Africa,
the colonial project was further strengthened by apartheid rule. Because of these
historical events, African traditional practices have been distorted, suppressed or
traditional relegated to the margins. Be that as it may, adherence to traditional practices is something
practices
which most Africans, regardless of how sophisticated they are or may be, continue
to take place quietly. According to the concept of Ubuntu, the self only makes sense
in relation to the community, hence the much used Nguni saying umuntu ngumuntu
ngabantu or the Sotho saying motho ke motho ka batho ba bangwe.
Generally, there seems to be an agreement among scholars that Ubuntu encompasses a

Ubuntu whole host of values. At the core of Ubuntu are values such as dignity, respect, compassion,
justice, fairness and conciliation. Anything that negates these values is contrary to
the value of Ubuntu and therefore unethical.
FAITH-BASED NARRATIVES
Whether religion should have a bearing on legal ethics is a highly contested and
positivists debatable issue. The debate goes to the heart of the contest between the positivists and
natural lawyers
natural lawyers on the relationship between law and morality. Arguments in favour
LJU4802/1 21
of this approach argue that the legal profession can benefit from men and women
whose conduct is rooted in religious injunctions. A counter argument is that religion
has the propensity to reduce everything to moral arguments, which at times may
not necessarily be ethical
ACTIVITY 7
From the presentation above it is clear that each of the different approaches we
discussed has its own unique features which can be helpful in the construction
of a coherent ethical argument. Identify and evaluate the core features of each of
the approaches. Can one approach be preferred to any other?
5 FEEDBACK
It is hoped that you would have noticed that the different theories are interlinked
and not mutually exclusive.
SELF-ASSESSMENT
Delay tactics
Source: Helen Kruuse
While on her way home from work, a single mother of three is hurt by falling debris
at a construction site. She suffers permanent injuries that prevent her from resuming
gainful employment. She sues the construction company.
You represent the construction company. You realise that your client’s defences on
the merits are extremely weak and that if the matter goes to court, your client is likely
to be liable for damages in the region of approximately R2 000 000.
Your client instructs you to use any and all legal strategies to prolong the litigation in
an attempt to increase the pressure on the financially desperate plaintiff to accept a
settlement offer of R200 000 (one tenth of what is likely to be awarded if the matter
goes to trial).
What will you do? Discuss how your actions fit in with the various philosophical
bases that you have studied.
22
3 LEARNING UNIT 3
3 The South African legal profession
ASSESSMENT CRITERIA
1. discuss practising law as a profession;

2. explain the content and constitutionality of the standard of a “fit and proper
person”;
3. outline and discuss the conflict that may exist between lawyers’ duty to
uphold the law and the state, and their duty to seek justice above all;
4. discuss the shift from the character test to the duty test.
Recommended reading
McDowell B “The usefulness of ‘good moral character’” 1993 Washburn Law
Journal 323–336 Eshete A “Does a lawyer’s character matter?” in The Good
Lawyer: Lawyers’ Roles and Lawyers’ Ethics (ed Luban) (1984):270–285
Slabbert M “The requirement of being a “fit and proper” person for the legal
profession” 2011 14(4) PER /PELJ 209.
Le Roux W “Conscience against the law: Mahatma Gandhi, Nelson Mandela and
Bram Fischer as practising lawyers during the struggle” 2001 Codicillus
20–35
THE LEGAL PROFESSION

The question of who can be a legal practitioner in South Africa is strictly regulated
by legislation and by the inherent common-law right of the court to regulate its own
processes. It is not sufficient to have a thorough knowledge of the law to become a
“fit and proper legal practitioner. Even those with all the relevant legal qualifications will be admitted
persons”
to the legal profession only once they have proven that they are indeed “fit and proper
persons”.
character Membership is subject to extensive character screening. Section 15(1)(a) of the Attorneys
screening
Act 53 of 1979 states that a court may enrol an applicant only if “such person, in
the discretion of the court, is a fit and proper person to be so admitted and enrolled”.
Section 22(1)(d) of the Act states that a practicing attorney may be struck off the roll,
if that attorney “in the discretion of the court, is not a fit and proper person to continue
to practise as an attorney”.
A similar character test applies to membership of the advocates’ profession. In

terms of section 3 of the Admissions of Advocates Act 74 of 1964, if you wish to
be admitted as an advocate, you need to satisfy the court that you are “over the age
of twenty-one years and is a fit and proper person to be so admitted and authorized”.
Section 7(1)(d) of the Act likewise authorises a court to remove an advocate from
LJU4802/1 23
the roll if the court “is satisfied that you are not a fit and proper person to continue to
practise as an advocate”.
This means that only persons of a certain character are allowed to practise as lawyers.
The requirement that you, as an aspirant lawyer, must prove to the satisfaction of the
law society that you are “a fit and proper person” for the legal profession underlines
the moral basis to the profession.
The reason for the character requirement is generally stated as follows: Lawyers are
entrusted with matters related to the affairs, honour, money, property, confidential
information and lives of their clients, and should be worthy of this trust and
confidence. Lawyers of bad character may fail to uphold their duty to either the
courts or their clients, or may abuse their position of trust. The public is protected
when lawyers are honest, diligent and place both the rights of clients and the law
above their own interests.
Some have argued that moral virtues and character are universal and applicable over
the ages and across cultures and that the concept of a “good moral character” has
“much the same meaning today it had for our grandparents”.18 “Moral character”
has been described as embracing truthfulness; a high degree of honour; a good sense
of discretion; and a strict observance of fiduciary responsibility.
However, the concept of a good moral character has also been criticised as an
“unusually ambiguous” concept which creates the potential for arbitrary and
discriminatory application and which, of necessity, reflects the subjective views
and prejudices of the person applying the criterion. It has been shown that in the
United States the standard of a “good moral character” has often been applied in
an arbitrary and prejudicial fashion, favouring those of a particular race, gender,
political persuasion and high economic worth. Rhode19 argues that in the United
States during the 19th century this character requirement was used to keep unwanted
groups of people out of the legal profession. Women, for example, were considered
too emotional, timid and delicate for legal practice.
In the early years of the 20th century Jews, blacks, Eastern European immigrants
and other non- conformists (such as radicals, divorcees and religious fanatics) were
subjected to such stringent character scrutiny that only a few gained entry to the
profession. During the second half of the 20th century, applicants were excluded
because of their membership of the Communist Party. Rhode holds that this kind
of prejudice does not augur well for a profession charged with defending minority
groups on the fringes of society. She believes that a broader range of values should be
acknowledged and that more debate is needed. It is noteworthy that bar organisations
consist mostly of mainstream practitioners who may wish to exclude non-conformists
from legal practice.20
The American experience is echoed in the chequered past of the legal professions
in South Africa. Whether or not somebody is a “fit and proper person” to practise
law as an advocate or attorney is essentially a discretionary value judgment on the
part of the court.21 In Prokureursorde van Transvaal v Kleynhans 1995 (1) SA 839 (T)
18 McDowell B “The usefulness of ‘good moral character’” 1993 Washburn Law Journal 323.
19 Rhoode D In the interest of justice: Reforming the legal profession (2000).
20 Rhode D 552.
21 Jasat v Natal Law Society 2000 (3) SA 44 (SCA) 51E; Law Society of the Cape of Good Hope v Budricks 2003
(2) SA 11 (SCA) 14A–B)).
24
LEARNING UNIT 3: The south african legal profession
853I–854C the court stated that although its judgment must be made on the totality
of the facts before the court, judgment will, in the end, be based on the general
impressions formed by the court and its own sense of appropriateness. The court has
inherent an inherent common-law power to regulate the legal professions and, therefore, remains
common-law
power the final arbiter of what is appropriate in this regard.22
In South Africa the court’s judgment about who is “an appropriate person” has
political frequently been influenced by political considerations. When Mahatma Gandhi applied
considerations
Gandhi to be admitted as an advocate of the High Court of Natal, his application was
opposed by the Law Society of Natal because he was of Indian origin and as such
not a “fit and proper person” to practise law. Although this fact is not reflected in the
official law report,23 it is extensively dealt with in Gandhi’s autobiography.24 When
Wookey Madeline Wookey wished to enter into articles of clerkship as a future attorney, the
Cape Incorporated Law Society objected and refused to register her articles because
she was a woman.25 A full bench of the Appellate Division relied on Roman Dutch
law and its exclusion from legal practice of persons who could be termed “unfit and
improper”, including the deaf, the blind, pagans, Jews, persons who denounced the
Christian Trinity and, most importantly, women.
During the years of apartheid, various Law Societies brought numerous court
applications to have lawyers who were involved in the struggle against apartheid
removed from the roll. The political abuse of the “fit and proper person” standard is
Fischer well illustrated by the case of Bram Fischer, a brilliant, highly regarded senior advocate
attached to the Witwatersrand Bar for many years. Fischer was struck off the roll
of advocates in 1965 because of his opposition to apartheid.26 In 1995, twenty years
after Fischer’s death, the Johannesburg Bar Council (which had brought the original
application) recognised the dilemma caused by their action against Bram Fischer as a
struggle lawyer and then adopted the following resolution: “While recognising that
opinions might differ, the present Johannesburg Bar Council has resolved that it does
not hold the view that Bram Fischer was not a fit and proper person to continue to
practise as an advocate. It believes that a grave injustice was done to him and today
it can only apologise to his family.” Legislation was subsequently enacted to allow
for the reversal of this injustice. In October 2003 Bram Fischer was posthumously
readmitted to the roll of advocates in terms of the provisions of The Reinstatement
of Enrolment of Certain Deceased Legal Practitioners Act 32 of 2002.27
Nonetheless, the end of apartheid, the adoption of a declaration on human rights

and the reinstatement of Bram Fischer on the roll of advocates did not signal an end
to the abuse of the fit-and-proper-person standard. In a highly publicised case, the
Law Society of the Cape of Good Hope refused to register a contract of community
(Prince) service of a prospective attorney (Prince). As a committed Rastafarian, he had in the
past used dagga (which is illegal) during religious ceremonies and stated his intention
to do so in future.28
From Gandhi to Prince, the modern history of the South African legal profession is
marred by the arbitrary exclusion of persons belonging to marginalised or oppressed
22 Kaplan v Incorporated Law Society, Transvaal 1981 (2) SA 762 (TPD) 770G–784D).
23 In re Gandhi 1894 NLR 263.
24 Gandhi M An Autobiography; Or my Experiments with Truth (1927) 121–123.
25 Incorporated Law Society v Wookey 1912 AD 623.
26 Society of Advocates of SA (Witwatersrand Division) v Fischer 1966 (1) SA 133 (T).
27 Rice v Society of Advocates of SA (Witwatersrand Division) 2004 (5) SA 537 (WLD).
28 Prince v President, Cape Law Society 2000 (3) SA 845 (SCA).
LJU4802/1 25
groups on account of their race, sex, political affiliation or religious convictions by
having recourse to the fit-and-proper-person standard. Given this history, it is not
surprising that the character screening of lawyers has been the subject of a number
of constitutional challenges during the first decade after apartheid. What is more
surprising is how little impact these challenges have had on the traditional legal
establishment.
A denial of admission to practise law can have serious consequences for your career.
In this respect it must be kept in mind that the right to choose your trade, occupation
or profession freely, although subject to regulation by law, is recognised in section
22 of the South African Constitution 1996. The right to follow a (legal) profession
may not be limited without fulfilling the requirements set out in section 36 of the
Constitution. You may, therefore, assume that any qualification for admission to
the profession (such as the criteria of character) must be clearly related to the public
interest and your fitness or capacity to practise law. It can be argued that character
traits or personal conduct that do not affect your professional performance or the
public interest should not play a role in the decision whether to admit you or not.
Constitution of The issue was first raised under the interim Constitution of 1993 in Prokureursorde van
1993
Kleynhans Transvaal v Kleynhans 1995 (1) SA 839 (T). In this case, the court was called upon
to comment on the constitutionality of its statutory power to remove unfit and
improper persons from the roll of attorneys. It was argued that this power violated
section 26(1) of the interim Constitution (the right to free economic activity). The
court rejected the argument. It held that standards could be set for the legal profession,
both as far as “competence” and “unquestionable integrity” was concerned, either on
the basis of the internal limitation of the section 26 right or in terms of the general
limitations clause, section 33(1) of the Interim Constitution.29
Machaka In Law Society of the Transvaal v Machaka 1998 (4) SA 413 (T) the constitutionality of the
power of the court to strike somebody off the roll was again challenged. However,
Constitution of the challenge was brought under the final Constitution of 1996 and was much broader
1996
in scope than that in Kleynhans. It was argued that the fit-and-proper-person standard
violated the right to dignity, equality and freedom (s 7(1)), the right not to be subjected
to cruel, inhuman and degrading treatment (s 12(1)(e)), and the right to choose one’s
trade, occupation or profession freely (s 22). Relying on the judgment in Kleynhans,
the court rejected these arguments as well as the idea that membership of the legal
profession should not be subjected to the character screening of the person involved.
The court held that character screening prevented the right to freely choose one’s
profession from being abused by criminally minded attorneys.30
Rosemann The admission requirements for the legal profession were also challenged in Rosemann
(SCA)
v General Council of the Bar of South Africa 2004 (1) SA 568 (SCA). In this case it was
division of argued that the division of work between the professions (advocates and attorneys) and
professions
the referral rule was irrational, and as such an unreasonable limitation on the right
to freely choose one’s profession (s 22 of the Constitution). The Court once again
rejected the argument and held that the freedom to choose a profession was not
violated by the dual structure of the profession. The applicant was at all times free
to choose whichever profession he wanted to pursue. Even if it was accepted that
the restriction on attorneys to do the work of advocates violated section 22, the
29 Prokureursorde van Transvaal v Kleynhans 1995 (1) SA 839 (T) 850G-J.

30 Law Society of the Transvaal v Machaka 1998 (4) SA 413 (T) 416A-J.
26
LEARNING UNIT 3: The South African legal profession
restriction remained justifiable because of the benefits which accrue to the general
public from the specialisation of legal services.31
From these cases it is clear that the constitutional challenge to the admission
requirements currently applicable to the legal profession has thus far met with
very little success. Both the fit-and-proper-person standard and the principle of
character screening have been accepted as constitutionally valid, without any serious
consideration given to the exclusionary impact this test has had in the past. Nor
have stricter rules for the application of the character test been laid down to curb
further and future abuse of this open-ended standard.
REGULATION OF A LAWYER’S PERSONAL LIFE

There are a number of obvious difficulties with the application of the fit-and-proper-
person standard. One question is whether a clear-cut distinction can be drawn between
the professional and private life of a lawyer. For example, some aspects of strictly
personal business dealings may spill over into a lawyer’s professional life, and vice
versa. The fitness of a lawyer who has embezzled funds will be suspect, whereas his
or her sexual indiscretions may not have such a negative effect. Professional codes
tend to reflect this lack of precision and differ in their approach to the requirement
of a good moral character in private life as opposed to professional life. This shows
their ethical superfluous and pragmatic nature.
The issue of whether or not there should be a distinction between professional

and personal conduct has not been settled in South Africa and there seems to be a
discrepancy in this respect between the application of the rules of the bar and the side-
bar. For example, the purpose of ethical rules of professional conduct at the side-bar
has been stated to be to “regulate an attorney’s conduct not only in his professional
career but also in his personal life” while such a rule does not apply to members of
the bar. This seems to be the reasoning of the court in relevant cases. The rationale
for the regulation of the personal life of the legal practitioner is probably that
if you do something which brings you into disrepute, the profession and the
administration of justice will also be brought into disrepute.
Form of regulation
The distinction between private and professional morality and ethics is but one
difficulty with character screening. It has also been argued that the past conduct
and history of applicants are not good indicators of whether they will be a future
threat to the public once admitted, and that the disciplining of practicing lawyers
at proper disciplinary proceedings is a better way of protecting the public. It is not
necessarily better to prevent the possibility of future problems by denying admission
to individuals perceived to pose a risk. The problem should rather be remedied after
it occurred.
It has further been argued that instead of the applicant having to prove good character,
the bar should carry the burden of establishing unfitness to practise in disciplinary
proceedings. This would result in a reversal of the burden of proof.
31 Rosemann v General Council of the Bar of South Africa 2004 (1) SA 568 (SCA) para [30]–[31].
LJU4802/1 27
Furthermore, it has been remarked that, under the present system, the applicant is not
necessarily protected by formal procedural safeguards and that his or her future is
decided on subjective judgments and predictions. In disciplinary hearings, procedural
safeguards are in place and objective criteria and actual acts of wrongdoing are used
as bases for decision-making.
Another point of critique is that the personal information that needs to be given by
the applicant bears no meaningful relationship to the public interest and that this
could boil down to an infringement of the right to privacy. Nevertheless, in spite of
these unanswered questions, we suggest that the requirement that lawyers must prove
that they are fit and proper persons for the legal profession opens the door for the
development of a more ethical profession grounded in an ethics of virtue because a
fit and proper person for the legal profession has generally been understood to be
a person who faithfully obeys the law as opposed to one who exercises his or her
independent good judgment.
ACTIVITY 8
(1) Do you think that one should distinguish between the professional and the
private life of a legal practitioner? Substantiate your answer.
(2) Do you think that character screening should be a prerequisite for admission
to the legal profession? Can it be constitutionally justifi ed? How was it
abused in the past?
6 FEEDBACK
(1) Your answer will depend on whether you are in favour of a role-differentiated
approach or not. If you are in favour of it, your answer will advocate for a dis-
tinction between the two and if you are not in favour of the role-differentiated
approach, your answer would be different.
(2) Once again, your answer will depend on your personal view. The constitu-
tionality has been tested in the cases of Prokureursorde van Transvaal v
Kleynhans 1995 (1) SA 839 (T) and Law Society of the Transvaal v Machaka
1998 (4) SA 413 (T). Reference should be made to the Wookey’s case and
that of Gandhi as well as Mandela.
A SHIFT FROM CHARACTER (VIRTUE) TO RULES (DUTIES)

Do criminal activities with a political motive reflect negatively on a lawyer’s
character?
A number of decisions were handed down in the course of the 20th century dealing
with admission to or membership of the legal profession of people who had been
convicted on criminal charges. These cases raise difficult questions about the reflection
(if any) which criminal behaviour casts on the character of a legal practitioner. We
focus on two questions, namely whether or not crimes resulting from deep-seated
political or and bona-fide political or religious convictions, necessarily reflect adversely on the good
religious
convictions character of a legal practitioner. In the judgment of the Supreme Court of Appeal in
Prince v President, Cape Law Society 2000 (3) SA 845 (SCA) the court held that it does.
However, this has not always been the case in our law.
28
character test Initially, a character test (an approach which emphasises virtue) was applied by our
courts and the question was whether the political motive behind the criminal conduct
reflected a corrupt character or not. With the rise of the apartheid state, however,
duty more and more emphasis was placed on legal practitioners’ duty to obey the law
(regardless of their political motives). Politically speaking, you may argue that this
shift was a deliberate attempt to purify the legal profession in the service of the
apartheid state. Philosophically speaking, the shift bears testimony to the hold of
legal positivism and legal formalism on the mindset of the apartheid judiciary and
the establishment’s legal profession.
One of the earliest cases in which the influence of a criminal conviction on professional
membership was investigated was decided shortly after the South African War.32 At
Krause the outbreak of the war, Krause was a practising advocate. He was taken prisoner
of war by the British troops and released on parole in England, where he obtained
permission to practise law as a member of the Middle Temple (one of the Inns of
Court). While in England, he wrote a number of letters to a former colleague of
his in Johannesburg in which he suggested that the author of a series of newspaper
articles describing the Boer forces as outlaws should be killed. On the basis of these
letters, Krause was subsequently convicted in England of attempt to incite murder.
Following his conviction, he was debarred by the Benchers of his Inn. When he
returned to South Africa after the war and the expiry of his sentence, he resumed
his practice as an advocate at the Cape Bar. He then applied to be admitted as an
advocate of the newly (re)constituted Transvaal Supreme Court on the basis that
he had been a member of the bar of the defeated Zuid-Afrikaansche Republiek
(ZAR). He also applied to the Benchers of the Middle Temple to be reinstated. That
application was turned down.
However, the Transvaal Bar Council took a resolution stating that it had no objection
to either his reinstatement in the Middle Temple or his admission to the Transvaal
Bar. The court decided in favour of Krause’s admission to the Transvaal Bar. It held
that as a general rule persons with previous convictions would not be admitted to
the legal profession. However, it was not the mere fact of a previous conviction that
mattered, but the question whether the conviction reflected negatively upon the
“personal honour” of the person involved. In most cases, the criminal conviction
would expose the character of the person involved as dishonourable. However, in
cases where the criminal offence was committed with a political motive and was not
born out of spite, or in an attempt to unlawfully further the private interests of the
offender, the criminal offence would not reflect negatively on the moral character
of the person involved.
This principle was applied again fifty years later during another political struggle.
The case in question involved the political life of a practising attorney by the name
Mandela of Nelson Mandela. Mandela had participated in the Defiance Campaign against the
apartheid government in the early 1950s and thereby violated a number of apartheid
laws, including the Suppression of Communism Act 44 of 1950, for which he was
convicted. After a suspended sentence was imposed, the Incorporated Law Society of
Transvaal approached the court to have Mandela removed from the roll of attorneys.
In the court case which ensued, the court examined the principles for the removal of
a legal practitioner from the roll.33 The court confirmed that the fact that an attorney
has been convicted of a crime is prima facie evidence of misconduct. However, the
32 Ex parte Krause 1905 TS 221.

33 Incorporated Law Society, Transvaal v Mandela 1954 (3) SA 102 (T).
LJU4802/1 29
fact that you deliberately disobeyed the law does not necessarily disqualify you from
practising law. Usually, removal will follow where the offence is related to your
professional capacity. However, you can also be removed from the roll for an offence
which has nothing to do with your practice. This would be the case, for example,
where the offence involves dishonesty and raises doubts about whether you can be
trusted as an officer of the court. The final test in this regard is whether the offence
indicates that you “are of such a character that you are not worthy to remain in the
motivated by a ranks of an honourable profession”. In this case, Mandela was motivated by a political
political vision
vision of a non-racial South Africa and although the campaign of civil disobedience
which he instigated was unlawful, his conduct was not of a dishonest, disgraceful
or dishonourable kind. The court concluded that:
the removal from the roll or the suspension of a legal practitioner who has
been convicted of a crime is not punishment for an offence for which the
practitioner had already been sentenced. The only question to be decided
is whether or not the facts pertaining to the conviction show that the legal
practitioner is of such a character that he or she is not worthy to remain in
the legal profession. Against this background the court held that nothing he
has done reflects upon his character or shows him to be unworthy to remain
in the ranks of an honourable profession. In advocating the plan of action,
the respondent was obviously motivated by a desire to serve his fellow non-
Europeans. The intention was to bring about the repeal of certain laws which
the respondent regarded as unjust ... The method of producing that result 
was unlawful  and for that he has been punished. But his offence was not
of a “personally disgraceful character”, and there is nothing in his conduct
which, in my judgment renders him unfit to be an attorney.34
Despite his questioning of the law and acting consistently with that questioning,
Mandela was found to be a “fit and proper person” and was accordingly not struck
off the roll.
Matthews Matthews v Cape Law Society 1956 (1) SA 807 (C) is another case which resulted from
the Defiance Campaign in which Mandela took part. This case brought about an
important shift in the law. It brought an end to the investigation of the character of
politically motivated legal practitioners. From then on, struggle lawyers would rely on
the character test whereas the establishment would rely on the duty to obey the law.
The Cape Law Society refused to register Matthews’s articles of clerkship because he
had two previous convictions under the Suppression of Communism Act (the same
offence as in the Mandela case). In deciding against the applicant, the court rejected
the character approach adopted in Mandela and Krause because of its narrow scope.
According to the court, the Mandela judgment focused only on the question whether
the offence in question reflected negatively on the honesty or personal honour of
the person involved. The court now reasoned that the real question was not whether
participation in the Defiance Campaign disclosed a lack of integrity, honesty and
honour, but whether it could be reconciled with the duty of an attorney to uphold all the existing
laws of the land. According to the court, therefore, the question was not whether the
motive for the criminal conduct was honourable, but whether it was consistent with
the duty of an officer of the court to uphold the law. An officer of the court cannot
himself or herself contravene the law or incite others to do so, even if the motive
for doing so is political.
34 Incorporated Law Society, Transvaal v Mandela 1954 (3) SA 102 (T) 108B-F.
30
duty approach The new duty approach rested on the fact that every legal practitioner is required to
swear an oath of allegiance to the state and the law. The first duty of a legal practitioner
is, in other words, to uphold the laws of the state. Your task is to advise your client
on the law as it is and to further that client’s case within the boundaries set by the
law. However, the South African apartheid experience has taught us that this rule-
based approach to professional conduct might be too narrow an understanding
of the ethical limits of the legal profession. What if the laws in force in a state are
fundamentally unjust? Would your duty to respect the law then be discharged if you
obey these (unjust) laws? This question was raised during the Truth and Reconciliation
Commission’s (TRC) inquiry into the role of the legal profession under apartheid.
The apartheid government made extensive use of the law to implement its racist
policies. What was the duty of those persons who practised law as attorneys and
advocates during the apartheid years?
In defence of the legal profession, it was argued before the TRC that lawyers did
not shirk their duty to obey the law when they served the administration of justice
under apartheid. This argument was rejected by the TRC. The TRC found that by
participating in the legal system and by keeping it intact, lawyers legitimised the
apartheid state and sustained its longevity. The government was thereby able to provide
its racism with some decency, while the courts were portrayed as being independent.
“The organised legal profession generally and subconsciously or unwittingly connived
in the legislative and executive pursuit of injustice”.35 The TRC found that lawyers
who remained blindly obedient to the apartheid laws betrayed the ultimate purpose
of law (ie, the quest for justice). “(A)n uncritical acceptance of promulgated rules of
law is unlikely to contribute to the achievement of justice”.36
The TRC held that the very use of the law by the apartheid regime opened a space for
lawyers which could have been, and sometimes were, used to preserve basic equity
and decency in the legal system.37 The true purpose or point of a legal system (ie,
the pursuit of justice) remained inherent if hidden in the South African (common)
law and provided a space for criticism of the positive law. The duty to uphold
the law cannot be understood as one to uphold every positive law, but should be
understood as the duty to hold the legal system accountable to its final objective
or moral end, namely the pursuit of justice. The TRC found that if more lawyers
had resisted the legislative encroachment on basic rights and fairness and had
maintained equitable common-law principles, government would have had to curtail
the jurisdiction of the courts, and the moral bankruptcy or degeneracy of its policy
would have been exposed. Nevertheless, a small minority of struggle lawyers who
did break ranks were influential in that they kept the constitutional idea alive during
apartheid.38 They struggled against the positive law for the sake of the moral ideal of
just law. It is this image of the good lawyer which the TRC takes as standard. These
lawyers denied the blind duty to obey the law and claimed instead that their true
virtues as lawyers (good judgment, care for the community and the oppressed, etc)
required of them to disobey the positive law of the state. Whether that made them
unfit and improper persons to practise law is the controversial question.
Fischer In Society of Advocates of SA (Witwatersrand Division) v Fischer 1966 (1) SA 133 (T) the court
referred briefly to the character approach of Mandela and to Bram Fischer’s character,
but the duty approach of Matthews carried the day. Bram Fischer was a practising
35 par 33 of the TRC report.

36 par 30.
37 par 27.
38 par 37.
LJU4802/1 31
advocate and member of the South African Communist Party. He too decided to
challenge what he considered to be the unjust laws of the land. It was in the course
of this challenge that he was arrested in September 1964 and charged under the
Suppression of Communism Act. He applied for bail, which was granted, but did not
return to stand trial. The court found that Fischer had deliberately misled the court
when he applied for bail, that his contempt of court amounted to dishonest conduct,
and that it reflected negatively on his character. The court stated categorically that an
attorney is bound to the same duty as the court to uphold the laws of the land which
had been duly enacted and promulgated. It would be inconsistent with that duty for
the court to allow a legal practitioner to remain on the roll when he was defying
those very laws and inciting others to do the same. Instead of appearing personally
in court, Fischer’s letter cited here was read on his behalf: “I can no longer serve
justice in the way I have attempted to do during the past thirty years. I can only do
it in the way I have now chosen.”
In reaction to this the Johannesburg Bar Council decided to institute proceedings in

the Supreme Court. The aim was to have Fischer removed from the roll of advocates
because his “recent conduct [was] unbefitting” of an advocate. Fischer again defended
his decision and conduct on the ground that his political conscience did not permit
him to do otherwise. This defence was to no avail. The court held that:
It is the duty of a lawyer to further the administration of justice in accordance

with the laws of the country and not to frustrate it.
It is the court’s duty to uphold and enforce the laws of the country it would
be inconsistent with that duty for the court to allow an advocate to remain on
the roll when he is defying these laws and instigates others to defy these laws.39
Fischer was accordingly struck off the roll and was sentenced to life imprisonment.
He died of cancer on 8 May 1975, still a prisoner. In 1995, the Bar Council resolved
that Fischer had been done a grave injustice. He was posthumously reinstated as a
member of the bar in October 2003.40
The Fischer judgment set the tone for the future. Incorporated Law Society, Natal v Hassim
1976 (4) SA 332 (N); 1977 (2) SA 757 (A); 1978 (2) SA 285 (C); 1979 (3) SA 298 (A)
involved an application to have Hassim struck off the roll of attorneys. He had been
convicted of assisting with the recruitment of persons in South Africa to undergo
political and military training as part of the armed resistance to apartheid. This was
a contravention of the Terrorism Act 83 of 1967. During the trial, evidence was
led on Hassim’s moral character, good name and integrity as an attorney. Evidence
was also led that he was personally opposed to violence and had assisted with the
recruitment out of a sense of loyalty to the political movement to which he belonged.
The court tried to reconcile the character and rule approaches by using the rhetoric
character of the character approach of Mandela and Krause, and by asking whether the offence in
approach question was of a personally disgraceful nature. The court, however, found that any
attempt to conspire with others to violently overthrow the government was disgraceful
behaviour and a reprehensible method of voicing protest. Nothing was made of the
fact that the offence was unrelated to Hassim’s professional work, that his good
name, honesty and integrity as an attorney were undisputed, and that the offences
were born out of a desire to bring about democratic transformation in South Africa.
39 Society of Advocates of SA (Witwatersrand Division) v Fischer 1966 (1) SA 133 (T) par 137F.
40 Rice v Society of Advocates of South Africa (Witwatersrand Division) 2004 (5) SA 537 (WLD).
32
The decision in Hassim regarded disobedience to the law out of political conviction
as sufficient proof of bad character.
Moseneke In Ex parte Moseneke 1979 (4) SA 884 (T), the character approach was also not
followed. Moseneke applied to be admitted as an attorney. The applicant (who
now serves on the bench of the Constitutional Court as Deputy Chief Justice) had
previously been convicted of sabotage and sentenced to 10 years’ imprisonment. His
conviction, like the convictions in Mandela, Fischer, and Hassim, had also arisen from
the struggle against apartheid. At the age of 14, when in grade 10 in school, he had
attended a number of meetings of the PAC as a member of ASUSA (the student
wing of the liberation movement). This was the only offence of which he had been
convicted. He had never been involved in any act of violence, sabotage or rioting
(the offence was that broadly defined). Both the Security Police and the Law Society
of South Africa were satisfied that the applicant had completely dissociated himself
from his previous political affiliations. The court stated that the serious offence of
which the applicant had been convicted would, at the time of its commission, have
rendered him an unfit person for the legal profession. However, since the applicant
had undergone a “complete and permanent reformation” his character had been
reformed to such an extent that he was now a fit and proper person for the legal
profession. His application was successful.
The court only paid lip-service to the earlier character approach of Krause and Mandela.
Why the applicant’s earlier political offence as a school boy would have reflected
negatively on his character is not explained. In spite of references to the applicant’s
character, the court simply assumed that the commission of a political offence, even
as a minor and without any element of violence attached to it, reflects negatively
on the character of the individual. This was exactly what the court in Krause and
Mandela had refused to accept.
Maqubela In Natal Law Society v Maqubela 1986 (3) SA 51 (N), the court also focused on the
criminal conduct as such. The court decided that “the inherent character of the
offence, particularly a common law one, is not altered by virtue of the fact that
the motive for its commission is proved to be political”. The inherent nature of
the offence was in itself “dishonourable and morally reprehensible”, regardless of
Maqubela’s moral character or motivations, and this disqualified him from practising
as an attorney. The political-offence exception recognised in Krause and Mandela was
not considered.
In the above overview of the campaign to have struggle lawyers struck off the rolls
of attorneys and advocates, two approaches come to the fore: The first approach
(virtue-ethical) emphasises the moral character of the legal practitioner and asks
whether the offence discloses a dishonourable or disgraceful character. The second
approach (rule-ethical) focuses on the objective duties of the legal practitioner who
is an officer of the court. In general, this includes the duty to obey all the existing
laws of the land. Open defiance of the law and incitement of others to defy the law
are serious breaches of this duty, irrespective of the good moral character which the
political offender may exhibit.
Above it was argued that the second approach (in which it is asked whether the
legal practitioner fulfilled his or her duty to uphold the law of the land) gradually
displaced the first one (the character approach), and that the courts showed a growing
reluctance to investigate the character of struggle lawyers as reflected in their political
convictions. The courts tended to focus on the seriousness of the crime involved
LJU4802/1 33
and on apparently objective standards such as criminal conduct (divorced from its
political context).
In a totally different context (no longer political, but religious), are the attempts of
Gareth Prince, a devoted Rastafarian, to be admitted to the legal profession.41 After
obtaining the B Iuris and LLB degrees, Prince applied to the Cape Law Society to
have his articles registered. His application was refused on the basis that he had two
previous convictions for the possession of canabis sativa (dagga), and had made clear
his intention to continue breaking the law. Prince took this decision on review to
the Cape High Court and challenged the refusal of his application on two grounds.
First, he argued that the prohibition of the use and possession of dagga in section
4(a) of the Drugs and Drug Trafficking Act 140 of 1992 was unconstitutional in so far
as it did not make provision for an exception for its bona fide religious use. Secondly,
he argued that even if the prohibition were not unconstitutional, his contravention
of the prohibition in the past (and in the future) would not by itself prove that he
lacked the character traits that would make him a fit and proper person to practise
law. Prince argued that he was constantly forced to choose between his deep-seated
and sincere religious beliefs and the law and that by choosing his religion above the
law he was exhibiting precisely the moral fibre and integrity needed from lawyers.
Both these arguments were rejected in the High Court (and eventually in the Supreme
Court of Appeal). The courts now had to deal with an offence stemming from
deep-seated religious feelings, and had to answer the question whether the unlawful
use of dagga for religious purposes reflected adversely on the good character of
the person. The Supreme Court of Appeal, after being invited by Prince to do so,
refused explicitly to follow the character approach developed in Krause and Mandela,
on the grounds that the facts of the Prince case were materially different. The court
preferred to adopt the rule or duty approach, and emphasised the objective duty of
legal practitioners to obey the law. It would thus seem as if the duty test, and not the
character test, has been carried over to the new South Africa.
There are, however, indications in the Constitutional Court judgment that the
position taken by the Cape High Court and the Supreme Court of Appeal on this
issue does not find universal support among South Africa’s senior judges. In all three
Prince judgments delivered in the Prince case, the possibility is raised that Prince may still
be a fit and proper person to practise law in spite of his criminal convictions and
continued defiance of the law.
Sachs J Sachs J, for example, judges the defiance of the law by Prince against the politics of
open democracy and of “reasonable accommodation of difference”. According to his
understanding of democratic politics, Prince should not be forced by an inflexible
application of the law to make the excruciating choice between his conscience
and his career. From a democratic-political perspective, Sachs J has no problem
to concede that, in spite of his open defiance of the dagga prohibition, Prince has
shown himself to be “a person of principle, willing to sacrifice his career and material
interests in pursuance of his beliefs”. From this obiter remark one can infer that
Sachs J is of the opinion that Prince’s religious (but illegal) use of dagga does not
render him an unfit or improper person for the legal profession. This inference is
supported by a further statement by Sachs J to the effect that the Law Society in
41 Prince v President of the Law Society, Cape of Good Hope 1998 (8) BCLR 976 (C); Prince v President,
Cape Law Society 2000 (3) SA 845 (SCA); Prince v President, Cape Law Society 2002 (2) SA 794
(CC).
34
the past impoverished itself by excluding persons of honour and integrity because
their beliefs had brought them into conflict with the law. This implicit reference to
the struggle lawyers is significant. It suggests that the Constitutional Court may well
in the future return to the older character approach of Krause and Mandela. Such a
return would be significant because it may reopen the door for a more fully developed
virtue-ethical approach to the professional conduct of lawyers.
We have already mentioned a number of difficulties which might be associated

with a more fully developed virtue-ethical approach or character screening test for
prospective legal practitioners. The discussion above has revealed another possible
danger which might attach to the call for a less rigid and rule-based approach to legal
responsibility. If we water down the duty to obey the law, or no longer make that our
central concern, then the threat of anarchy begins to loom large. Serious dangers may
attach to civil disobedience, or worse, to violent resistance. If each person were to
decide which laws he or she wishes to obey, the country may become ungovernable.
Disrespect for the law, violence and anarchy may ensue and the situation may be
exploited by extremists.
To the question of the grounds on which legal practitioners may decide to practise
civil disobedience civil disobedience or to engage in violent resistance, various answers are possible. It may
be argued, for example, that resistance is justified when:
conscience • the laws are immoral. It would then be a matter of the individual conscience to decide
whether or not to obey them (with no guarantee that this conscience is always
correct, or that it does not conflict with somebody else’s conscience).
religious • it is based on the individual’s religious beliefs. The idea is that one should obey
God rather than man (but we know that the Bible, for example, can be [and
has been] interpreted in different ways. There have been attempts to justify race
discrimination on the basis of specific interpretations of the Bible).
unjust • positive law is unjust and not worthy of respect. In this regard, appeal is generally
made to natural law (as a higher law against which positive law is measured) and
man’s reason. Locke’s social-contract theory stems from this idea. According
to Locke’s theory, the primary function of government is to protect individual,
inalienable rights (eg, the right to life, freedom and property) in equal measure
and to act in the interest of all. The state and its laws need be obeyed only as long
as they fulfil this function. Civil disobedience and violent resistance would be
justified if the state fails to uphold its side of the bargain. But again, there are no
explicit criteria to measure the failure.
utility • utility so dictates. Disobedience to the laws of the land is regarded as an instrument
for bringing about the greatest good for the greatest number. Conduct A (sabotage)
may, according to the utilitarian viewpoint, hold greater benefit for society than
conduct B (obedience to the laws), since eventually it will result in a democratic
state, even though it may mean that some people will be hurt or will suffer loss
in the process. Nevertheless, consequentialism is not generally accepted. Also,
there is no guarantee that the promised outcome will materialise and not all may
agree that the present situation is unacceptable.
LJU4802/1 35
ACTIVITY 9
(1) The residents of Sheshego are upset about new traffic lights which have been
erected outside the residence of the mayor. The sole purpose of the lights
seems to allow the mayor unhindered access to a busy road. Although the
residents have written a letter stating their concerns, they haven’t received
any reply from the mayor. You practise as an attorney in Polokwane and the
residents approach you to take up the matter on their behalf. They want to
organise a campaign of civil disobedience in which they deliberately refuse
to stop at the traffic lights. You have sympathy with them and would like to
help, but you are not sure whether or not you as a lawyer should become
involved. The residents are quick to remind you of the important role lawyers
like Mandela and Gandhi played concerning civil disobedience in the past.
Write a memorandum to your clients in which you explain the following:
• the duty of a lawyer to uphold the law – give examples

• the meaning of civil disobedience
• why the example of Mandela and Gandhi is / is not still relevant
• suggestions for the way they should go about to voice their concerns in
a constitutional democracy.
7 FEEDBACK
In the memorandum you were expected to touch on the following:
The duty of the lawyer to uphold the law; examples are Matthew, Maqubela, Mo-
seneke, and Prince.
Civil disobedience is an exception to the general rule that a lawyer has a duty to
obey the law. But when this is raised, the circumstances under which this is ap-
plicable should be considered. See the four bullet points above.
A case can be made for the relevance of Mandela and Gandhi. Your motivation
should, of course, pass constitutional muster. In a constitutional democracy, there
are ways and mechanisms for a legal practitioner to make their voice heard; for
example, engaging with a chapter-nine institution as provided for by the Constitu-
tion of South Africa, 1996.
THE REMOVAL OF LAWYERS NOT BEING FIT AND PROPER

Section 22 of the Attorneys Act 53 of 1979 provides that:
22(1)Any person who has been admitted and enrolled as an attorney may on
application by the society concerned be struck off the roll or suspended from
practice by the court within the jurisdiction of which he or she practises …
(d) if he, on the discretion of the court, is not fit and proper to continue to
practise as an attorney; or …
Section 7(1)(d) of the Admission of Advocates Act 74 of 1964 authorises a court to

remove an advocate from the roll of advocates, if the court “is satisfied that he is
not a fit and proper person to continue to practise as an advocate.”
36
Radebe The case of the Law Society of the Free State v Radebe (5293/2015) [2016] ZAFSHC
97 (( June 2016) concerns mismanagement in the administration of a deceased
estate. The complaint was based on the alleged delays by the attorney to finalise
the estate, the fees that he charged, his failure to reply to correspondence and the
unauthorized utilisation of funds for personal practice expenses to the value of
R31 000. The question was therefore whether the attorney is a fit and proper person
to continue practising as an attorney. In the case Chesiwe AJ referred to the case
Jasat of Jasat v Natal Law Society 2000 (3) SA 44 (SCA) in which it was stated there is a
three-stage enquiry in such matters.
• First, it must be established whether the alleged conduct has been established on
a balance of probabilities (a factual enquiry) or not.
• Second, if the person concerned is, in the discretion of the court, not fit and
proper to continue to practise.
• Third, whether or not in all circumstances the person in question is to be removed
from the roll of attorneys or whether an order of suspending him from practice
for a specified period will suffice or not.
The judge reiterated that it is in the discretion of a court upon the factual findings
to determine whether a practitioner is fit and proper to continue practising. In the
Radebe matter, the attorney was only suspended and barred from practising for a
period of 12 months.
Swanepoel In Law Society of Good Hope v Swanepoel (1835/2013) [2015] ZAECGHC 82 (27 August
2015) the attorney’s offending conduct was theft of monies entrusted to her. She
Hassim was convicted of theft in a criminal trial. The court referred to the case of Hassim
v Incorporated Law Society of Natal 1977 (2) SA 757 in which it was stated that the fact
that an attorney has been convicted of a criminal offence is prima facie proof that
he committed the offence. She persisted in denying the theft and thereby, according
to the judge, displayed no insight into the seriousness of her conduct. At times she
suggested her accountant was responsible for what happened. She was, therefore,
struck off the roll of attorneys.
Mabaso Law Society of the Northern Provinces v Mabaso (20252/14) [2015] ZASCA 109 (21 August
2015) was an appeal from the court a quo in which the attorney was suspended from
practising. The case concerns the misappropriation of trust funds and a failure to
attend disciplinary proceedings of the Law Society. Although the court a quo found
that he was not a fit and proper person to practise as an attorney, he has was only
suspended and prohibited from practising for a period of one year. The court stated:
I have no doubt in my mind that the transgressions of the respondent [Mr

Mabaso] are serious. When viewed in totality. The court now has to decide
whether they were serious enough to warrant the extreme penalty of striking
off. In my view, the respondent was not found guilty of dishonesty and therefore
the penalty of striking off is rather too severe in this particular case. This
is so because, on the respondent’s version, he did not have exposure to the
administration of the trust account since his first admission as an attorney in
2001. He only started operating a trust account after he started practicing on
his own account.
The Law Society took issue with the finding. In the judgment in the Supreme Court
of Appeal it was stated that the respondent, instead of confronting the allegations
against him, accused others for his behaviour. The court felt that he exhibited a
LJU4802/1 37
lack of insight into the wrongfulness of his actions and had a complete disregard
for the Law Society’s rules. He was accordingly struck from the roll.
The most alarming case concerning the malpractice by advocates is the case of The
Geach and General Council of the Bar of South Africa v Geach and Others 2013 (2) SA 52 (SCA). In
Others this case, 13 practising advocates at the Pretoria Society of Advocates were found
guilty of transgressions concerning the Road Accident Fund. Mainly it concerned
double-briefing which is prohibited by Rule 2.6 of the Uniform Rules of the Bar.
In this case the judge remarked:
Our courts have repeatedly said that the primary purpose of the provisions
empowering courts to remove legal practitioners from the roll is not punitive,
but the protection of the public.42 If the advocate has reformed and remedied
his or her failures and shortcomings before the application [to be struck from
the roll] comes to court, there may be no further need for disciplinary sanction
to be imposed, because the advocate is once again a fit and proper person to
continue to practise as such. I say “may be” deliberately, because there are
cases where the conduct is so serious that, by its very nature, it renders the
advocate unfit to remain in practice and may even exclude the prospect of
rehabilitation.43 The need to protect the good name of the profession, which
is central to the enquiry whether a person is a fit and proper person to practise
as an advocate, may sometimes lead to the conclusion that a person is not
such, even though there is evidence indication that it is unlikely that they will
repeat their previous misconduct.44
The cases above are just a few from recent times; we end with a case in the
Ndleve Constitutional Court concerning an advocate. In a unanimous judgment in Ndleve
v Pretoria Society of Advocates [2016] ZACC 29 the following happened. Mr Ndleve
was found guilty of malpractice and theft in the lower courts. His transgressions
includes taking instructions directly from clients without being briefed by an
attorney, taking money from clients without the intervention of an attorney and
stealing money intended for his clients’ creditors. He also continued practising as
an advocate despite him being struck off the roll by the High Court. The judges
remarked that the fact that he continued practising as an advocate despite the High
Court’s dismissal of his application for leave to appeal, borders on contempt of
court which is unethical professional conduct.
THE RE-INSTATEMENT OF LAWYERS BEING STRUCK OFF

THE ROLL
Recommended reading
Slabbert M and Boome D J “Reformation from criminal to lawyer: Is such redemption
possible?” 2014 PER / PELJ 17(4)
If either an advocate or an attorney who has been removed from the roll wants to
be readmitted, he or she will have to prove once again that he or she is a fit and
Swartzberg proper person. In Swartzberg v Law Society, Northern Provinces 2008 All SA 438 (SCA)
Ackerman J is quoted when he said:
42 Van den Berg v General Council of the Bar of South Africa [2007] 2 All SA 499 (SCA) par 50.
43 Algemene Balieraad van Suid-Afrika v Burger en ‘n ander 1993 (4) SA 510 (T) at 526H-527A.
44 The General Council of the Bar of South Africa v Geach and Others 2013 (2) SA 52 (SCA) par 153.
38
Section 15(3) [of the Attorneys Act] deals specifically with readmissions. A
discretion in deciding whether an applicant is a “fit and proper” person to be
so readmitted and re-enrolled is now expressly conferred on the Court. It is
also significant that, whereas s 15(1) provides that a Court “shall” admit and
enrol a person as an attorney if the preconditions of sub-sec (a) and (b) are
fulfilled, s s(3) provides that a Court “may” re-admit and re-enrol any person
who was previously admitted and enrolled as an attorney and had been removed
from or struck off the roll, as an attorney if the preconditions of sub-sec (a)
and (b) are fulfilled. The fact that the word “may” is used in s 15(3) whereas
“shall” is used in sub-sec (1) is significant. It shows that the Legislature wanted
to differentiate between the Court’s functions under ss 15(1) and 15(3) and
wished to confer a further discretion on the Court in regard to re-admissions
under s 15(3). It seems that, even where the Court is satisfied that s 15(30(b)
has been complied with and the person applying is, in terms of s 15(3) (a) “in
the discretion of the Court” a “fit and proper” person the Court still has a
discretion to refuse re-admission.45
Kaplan Kaplan v Incorporated Law Society, Transvaal 1981 All SA 15 (T) involved a re-admission
application by an attorney who had been struck off the roll for unprofessional conduct.
The court said the following:
In the case where an applicant was previously struck off the roll for
unprofessional, dishonourable or disgraceful conduct it would at least be
necessary for him to satisfy the Court that he has undergone a complete
and permanent reformation in respect of such conduct. In this regard the
investigation of the Court would relate to (a) the nature and particulars of the
conduct that gave rise to the striking-off; (b) the behaviour of the applicant
after such conduct became known and (c) the question whether it could
with complete confidence be accepted that the applicant is a fit and proper
person to be re-admitted as an attorney …46
ACTIVITY 10
(1) Explain when and how a lawyer who has been struck off the roll could be
re-instated. Give examples.
8 FEEDBACK
(1) Reference should be made to the cases of Krause, Moseneke and Braam
Fischer. Please remember that the applicant must allege among others that
time has lapsed and that he or she has undergone a complete reformation.
You may also want to refer to the article by Boom and Slabbert above.
45 Swartzberg v Law Society, Northern Provinces 2008 All SA 438 (SCA) par 17.
46 Kaplan v Incorporated Law Society, Transvaal 1981 All SA 15 (T) par 48.
LJU4802/1 39
THE LEGAL PRACTICE ACT AND CODE OF CONDUCT
The Legal Practice Act 28 of 201447
not in force yet Although the Act is not in force yet, it is necessary to take it in consideration as it
might come into force early in 2018 or soon thereafter.
The purpose of the Act is stated in section 3 as:
(a) To provide a legislative framework for the transformation and restructuring of

the legal profession that embraces the values underpinning the Constitution
and ensures that the rule of law is upheld;
(b) broaden access to justice by putting in place –
(i) a mechanism to determine fees chargeable by legal practitioners for

legal services rendered that are within the reach of the citizenry;
(ii) measures to provide for the rendering of community service by candidate
legal practitioners and practicing legal practitioners; and
(iii) measures that provide equal opportunities for all aspirant legal
practitioners in order to have a legal profession that broadly reflects
the demographics of the Republic;
(c) create a single unified statutory body to regulate the affairs of all legal
practitioners and all candidate legal practitioners in pursuit of the goal of an
accountable, efficient and independent legal profession;
(d) protect and promote the public interest;
(e) provide for the establishment of an Office of Legal Services Ombud;
(f) Provide a fair, effective, efficient and transparent procedure for the resolution
of complaints against legal practitioners and candidate legal practitioners; and
(g) create a framework for the –
(i) development and maintenance of appropriate professional and ethical

norms and standards for the rendering of legal services by legal
practitioners and candidate legal practitioners;
(ii) regulation of the admission and enrolment of legal practitioners; and
(iii) development of adequate training programmes for legal practitioners
and candidate legal practitioners.
Legal Practice The Act envisages the establishment of a Legal Practice Council that would, amongst
Council
others, facilitate a transformed and restructured legal profession in order to provide
access to justice for the majority of citizens.48 The Council will regulate the affairs of
all legal practitioners, candidate legal practitioners and juristic entities by developing
norms and standards to guide the conduct of all legal practitioners.49 The Council
will also in accordance with the Act admit legal practitioners and keep a Roll of
all practitioners.50
The Council must progressively establish a Provincial Council in every province of

the Republic and such Provincial Councils will have powers in the interest of the
legal profession that are better performed at provincial level.51
47 The Legal Practice Act 28 of 2014 (Government Gazette No. 38022 Vol 591 of 22 September 2014.)
48 Section 5.
49 Section 6.
50 Section 6(3).
51 Section 23(1).
40
Section 24 of the Act determines that a legal practitioner should be admitted and
enrolled by the High Court if the Court is satisfied that he or she is duly qualified,
fit and proper a South African citizen or permanent resident in the Republic and is a fit and proper
person
person to be admitted. An application to be admitted as a lawyer should be served on
the Council, containing the information as determined in the rules within the time
period determined in the rules.52 The minister may, in consultation with the Minister
of Trade and Industry and after consultation with the Council and having regard
to any relevant international commitments of the Government, make regulations
in respect of the admission and enrolment of lawyers.53
Apart from the professions of attorney and advocates now falling under one controlling
one controlling body, another significant addition for lawyers is the requirement of community service
body
as part of the vocational training by candidate legal practitioners.54 Practicing legal
practitioners should also do a minimum period of recurring community service upon
which continued enrolment as a legal practitioner is dependent.55
The Council may suspend the enrolment of a legal practitioner and, after a process
has been followed, remove his or her name from the Roll.56
A legal practitioner may at any time, in compliance with the rules and requirements,
apply to the Council to convert his or her enrolment as an attorney to that of an
advocate and vice versa.57
The difference in the Act from the current position concerning the professions of
an attorney and an advocate is that a person who keeps on practising as an attorney
still needs a Fidelity Fund certificate. An advocate practises a referral profession
unless he or she also has a Fidelity Fund certificate in which case he or she may
accept work directly from the public.58
The Council must also develop a code of conduct that applies to all legal practitioners.59
The Code of Conduct for Legal Practitioners, Candidate Legal Practitioners

and Juristic Entities
This Code of Conduct has been published in terms of section 97(1)(b) of the Legal
The Code is NOT Practice Act 28 of 2014 in Government Gazette no 38022 of 22 September 2014. The
IN FORCE yet
Code is NOT IN FORCE yet, but apply to all legal practitioners when the Act comes
into operation.
To comply with the purpose of this module, Professional Ethics, we highlight a few
aspects of the Code.
In section 2 it is stated that legal practitioners should maintain the highest standards
of honesty and integrity and uphold the values and principles of the Constitution.
It also stresses that the interests of clients are paramount but subject to the duty to
52 See section 30 for the requirements of the enrolment with the Council.
53 Section 24(3).
54 Section 29.
55 Section 29(1)(b).
56 Section 31.
57 Section 32.
58 Section 34.
59 Section 36.
LJU4802/1 41
the court, the interest of justice, the observation of the law and the maintenance of
ethical standards as prescribed by the Code.60
In short, the following is expected of legal practitioners:61
• avoid a conflict of interests

• maintain legal practitioner/client privilege and confidentiality
• account faithfully and timeously for any client’s money in their possession
• advise clients at the earliest opportunity about the likely success of a case
• handle cases competently and timeously
• charge reasonable fees
• remain abreast of developments in the law
• show respect to colleagues and the public
• refrain from bringing the legal profession in disrepute
• pay all fees to the Council or otherwise timeously
• comply with the provisions of the Code
SELF-ASSESSMENT
(1) Give meaningful arguments indicating whether you support a character or a
duty-based approach when admitting lawyers.
(2) Do you think that in considering whether a legal practitioner is fit to practise
law the seriousness of the crime he/she has been convicted of (damage caused,
person killed or injured) should or should not play a role? Motivate your answer.
(3) Choose any of the struggle lawyers and write a short note on his/her contribu-
tion to the development of the South African legal order. Do you think that
these lawyers could still serve as examples to prospective legal practitioners?
If so, why? If not, why not?
(4) How will the Legal Practice Act and the Code of Conduct in terms thereof
change the legal profession? Do you think it is necessary and it will be better
or not? Motivate your answer.
60 The Code section 3.

61 The Code, Part II.
42
4 LEARNING UNIT 4
4 Role morality
ASSESSMENT CRITERIA
1. evaluate the adversarial system and its possible impact on the ethics of a
legal practitioner
2. discuss the role-differentiated approach and its shortfalls
3. outline possible alternatives to an adversarial system
4. construct an argument that a legal practitioner’s ethics matters
Suggested reading
Farrow TCW “The good, the right, and the lawyer” 2013 Osgoode Hall Law School
Comparative Research in Law & Political Economy. Research Paper Series
No.8/2013. Available on: http://digitalcommons.osgoode.yorku.ca/clpe/257
(Date of use: 15 May 2017).
Parker C and Evans A Inside Lawyers’ Ethics (Cambridge University Press
Melbourne) (2007) Chap 2 (21–40).
Mnyongani F “Duties of a lawyer in a multicultural society: a customary law
perspective?” 2012 (23) Stellenbosch Law Review 352–369.
Mnyongani F “De-linking ubuntu: towards a unique African jurisprudence?” 2010
(31) Obiter 134–145.
In the first learning unit of this study guide, it was pointed out that one of the
characteristics that sets a profession apart from other jobs is that professionals enjoy
relative autonomy relative autonomy in the execution of their duties. Lawyers do not come empty handed
to the profession; they bring with them not only who they are but also a vision of a
world they themselves would like to see. A question to ask in this regard is whether
legal practitioners’ values, culture, religion and sense of justice should have a bearing
on the work they do, or whether the role they play as lawyers should dictate to them
the sense of morality that is to be displayed in the execution of their duties. What
do you think?
Farrow Farrow asks: “should the lawyer be guided by her own sense of what is ethical, moral,
just or good; or should she essentially be neutral to those moral or other issues in
favour of simply following her client’s instructions within the boundaries set out
by the law?”62 Part of the answer to the question lies in the rule-based system that
adversarial is adversarial in nature. In the adversarial system (also called the accusatory system)
system
two parties face each other (eg the state and the accused in criminal cases or two
private/juristic persons in civil cases). The roles of legal representatives and judges
62 Farrow TCW “The good, the right, and the lawyer” 2013 Osgoode Hall Law School Comparative
Research in Law & Political Economy. Research Paper Series No.8/2013. Available on: http://digi-
talcommons.osgoode.yorku.ca/clpe/257 (Date of use: 15 May 2017).
LJU4802/1 43
judge “referee” are carefully separated. The judge acts as an impartial “referee” who listens to both
sides of the case and must see to it that the various legal representatives adhere to
the procedural rules (the “rules of the game”). The judge has to ascertain the true
version of the facts and apply the law objectively to these facts. Legal practitioners,
on the other hand, focus on their clients’ interests and do not really strive for justice
or the promotion of the general good. According to the adversarial system, it is not
the task of legal representatives to decide whether or not their clients are guilty or
accountable (this is the task of the judge), but rather to act as a mouthpiece for their
clients. Legal practitioners do not try to balance the interests of all involved, ascertain
the true version of the facts, or apply the law objectively to these facts.
According to the adversarial system, legal representatives are neither independent

nor impartial. They listen to only their clients’ version of the case and have to
promote their clients’ interests fearlessly – regardless of the interests of other persons.
Because everybody has the opportunity to present his or her case and because an
independent judge renders the decision, it is assumed that the adversarial system
will result in justice and equal protection of everybody’s rights. The premise is, of
course, that everyone has equal access to legal representation and relatively equal
bargaining power. Markovits argues as follows:
Everyone’s rights are best protected by a legal system in which each party to
a dispute enjoys the services of a lawyer who cares exclusively about its rights,
so that lawyers’ exclusive concern for their clients is only one part of a moral
division of labour whose aim is to secure impartial justice to all. On this
argument ... the adversary lawyer’s seemingly partial behavior is ... justified
because the adversary system is ... justified.63
This system applies in the United States of America, England and South Africa. In
these countries it is traditionally regarded as the best way to bring about law and
justice. Though it does not mean that the system is not without its own limitations.
As Markovits points out, the adversarial system puts lawyers in a moral dilemma.
It requires of them not only to display ordinarily impermissible partiality in favour
of their clients, but also to subordinate their own ethical ideals of honesty, fair play
and kindness to a professional role in which they must, in some measure or other,
cheat and abuse to pursue courses of action and adopt forms of life that separate
them from their personal ambitions and ideals.64
Partiality towards clients can be regarded as the essence of the legal profession.
Practitioners act in the interest of their clients and have to defend their clients’
interests fearlessly and even aggressively in both criminal and civil cases. Indeed, in
terms of the professional rules a legal representative may never undermine his or her
client’s case because the client, in his or her opinion, should not win the case. Legal
practitioners often deliver services to and defend clients who are morally undeserving.
Role-differentiated behaviour
The concern of moral and legal philosophers about the way in which lawyers approach
legal ethics is compounded by a slightly different but related problem known as the
258.
258.
44
LEARNING UNIT 4: Role morality
“role-differentiated behaviour” of lawyers. It means that lawyers are expected to

respond differently to moral problems in their role as lawyers than they would as
private individuals outside their professional capacity. This gives the law and the
judicial system a bad name because either it is not linked to real life or it is nothing
but a game which you should not trust.
Several philosophers have examined the behaviour of lawyers and have found
little, if any, value in the way lawyers deal with ethical problems. They argue that
the professional regulation of lawyers causes them to be client-orientated and to
lose focus of the broader ethical and civic responsibilities attached to the practice
of law. For one, this leads lawyers to do things for their clients that they would
have normally found immoral or unethical. The role of the lawyer requires one to
ignore moral considerations that would otherwise be crucial in determining one’s
actions. Lawyers are forced by the nature of their profession; in other words, they
are compelled to disregard their own views on whether their client acted ethically or
not. The lawyer is required to pursue with the utmost skill, aggression and diligence
the client’s objectives as long as he or she does not violate the law. This is sometimes
called the “ethics of the hired gun”.
Markovits Markovits65 argues that, in order to survive, legal practitioners have to defend their
clients against others in a way that would otherwise be immoral. For example,
legal practitioners sometimes cross-examine truthful opposition witnesses in an
extremely aggressive way in attempt to undermine their credibility or confuse them.
They also take part in “sharp practices” which include unnecessarily delaying a case,
manipulating facts, making statements they themselves do not believe, and pleading
technical defences (such as prescription) when they know that their client has a moral
duty to compensate the claimant.
Morally good legal practitioners try to justify such reprehensible conduct by means
play a role of the role-differentiated or role-based approach. They argue that they only play a role, and
that their aggressive and unethical conduct goes with their role as legal practitioner.
When legal practitioners act in their professional capacity they do not act as ordinary
people, but as performers of a role. Their role insulates them from moral censure.
Their conduct cannot be assessed by the standards of ordinary morality. What matters
is whether their appearance in court was good or bad, whether their arguments were
clever, and whether their cross-examination was skilful. Whether they abused other
people or told lies is irrelevant.
uncomfortable Markovits argues that the morally good legal practitioner will be uncomfortable with the
First role-based approach for two reasons. First, this approach regards legal practitioners
as mere performers in a certain role or as agents for others, and not as autonomous,
Secondly self-driven entities who have to be judged on their own moral merit. Secondly, this
approach forces morally good lawyers to betray the moral ideals according to which
they live their private lives. Morally good persons always strive to act honestly
and justly and to treat other people in a friendly and cordial manner. When their
professional role requires them to tell lies, to cheat or to abuse people, their ideals
are subordinate to the claims of the adversarial system and they are reduced to
mere cogs in the machine of the legal system. This results in a loss of integrity and
a betrayal of own life plans and ideals as well as a philosophical acceptance of the
fact that immoral conduct forms part of their professional character. Morally good
people need to identify with their own conduct and know that it contributes to the
209–293.
LJU4802/1 45
achievement of their moral ambitions. They do not wish to live estranged from their
moral life and wish to retain their integrity because it gives meaning to their lives.
A second possibility for morally good practitioners is to redefine their professional role
in such a way that they do not have to renounce their own ethical ideals or integrity.
They can, for example, declare that they act in a virtuous manner because they
strive for the professional virtues of loyalty (towards their clients) and statesmanship
(towards the community). (See the discussion on virtue ethics). Loyalty towards their
clients involves that practitioners act selflessly and renounce themselves to promote
the interests of their clients. Statesmanship involves that practitioners uphold the
political culture and community since they are able to promote a variety of interests.
According to this approach – which advocates the “lawyerly virtues” – it is, for
example, the task of legal practitioners to expose the weaknesses of all positions
through aggressive cross-examination. This would not amount to the abuse of people.
A redefinition of the professional role of legal practitioners will solve the moral
dilemma that the morally good practitioner finds him or herself in only if these
arguments are accepted by the outside world, which is unlikely to happen.
Wasserstrom Wasserstrom66 developed a critique of the ethics of the hired gun. He suggests that the
concept of a hired gun can best be defended in the case of the criminal lawyer but
that it cannot serve as a model for lawyers in general. Lawyers should see themselves
“less as subject to role-differentiated behaviour and more as subject to the demands
of the moral point of view”.67 He investigates the possible justifications for the hired-
gun approach in legal practice but steers the argument in the opposite direction for
the following four reasons:
(1) The legitimacy of role-differentiated behaviour can be sustained only if the

adversarial criminal law system (where prosecutor and accused act as opponents)
is in itself legitimate. However, we have some cause for skepticism about the
justice and effectiveness of the present legal system.
(2) Role-differentiated behaviour justifies a cut-throat, “winner-takes-all”, capitalist
ethic competitiveness (rather than cooperation), aggressiveness (rather than
accommodation) and ruthlessness (rather than compassion).
(3) Lawyers cannot adopt a purely role-differentiated perspective as easily as
medical doctors because it is intrinsically good to cure a disease, but in no way
can it be intrinsically good to win every lawsuit at all costs, especially where
lawyers need to portray that winning at all costs is the essence of justice.
(4) Lawyers pay a price for their role-differentiated professional behaviour because
it is hard, if not impossible, to divorce one’s professional way of thinking from
other aspects of life. Cunning and ruthlessness in professional life may have a
devastating effect on a lawyer’s private life. The professional life one chooses
often determines what kind of person one becomes.68
We must, therefore, come to the conclusion that there can be no moral justification for
the immoral conduct of legal practitioners. Markovits believes that legal practitioners
are cast in the role of villains by historical forces over which they have no control,
66 Wassertrom RA “Lawyers as professionals: some moral issues” in Davis & Elliston (eds) Ethics and the
Legal Profession (1986):1 4–131.
Legal Profession (1986):122.
Legal Profession (1986):123–124.
46
and that they must often abandon their integrity to be able to have really successful
practices.
ACTIVITY 11
(1) What are the characteristics of an adversarial legal system?
(2) Can a hired-gun approach to legal practice be justified?
(3) What do you understand by role-differentiated behaviour? Explain.
9 FEEDBACK
(1) See the paragraph on the ethical risk of the adversarial legal system above.
(2) You can argue either for or against it; it all depends on your motivation.
(3) Please refer to the preceding discussion.
POSSIBLE ALTERNATIVES TO THE DOMINANT APPROACH

social context Law is practised in a particular social context and may, from time to time, require a
different approach. For instance, it is argued that in South Africa the practice of
law unfolds within a multicultural society still beset by the challenges of inequality,
Mnyongani poverty, discrimination and illiteracy.69 Mnyongani argues that the transformative
agenda of the Constitution of the South Africa to build a society based on democratic
values, social justice and fundamental human rights is far from being realised.70 The
Liebenberg and ideals of a transformative society continue to guide society. According to Liebenberg
Goldblatt and Goldblatt, a transformative constitutionalism seeks “to facilitate a fundamental
transformation in the unjust political, economic and social conditions based on social
justice, democracy and human rights”.71 An argument can be advanced that there
may be occasions when the social context require legal practitioners to align their
transformative practice with the ideals of a transformative constitution. In the pursuit of the ideals of a
constitution transformative constitution, lawyers will, from time to time, be called upon to make
choices which may require that they consider options not necessarily accommodated
by the adversarial system. Writing from an Australian perspective, Parker and Evans
explore alternatives to the adversarial system which include responsible lawyering,
moral activism and an ethics of care.72 On close inspection, these models may also
Multiculturalism find relevance in South Africa and are worth considering. Multiculturalism is one of
the defining features of South African society. In this regard we also argue that
in the South African context it is imperative that lawyers are conversant with the
African African communitarian way of practising law.
communitarian
way
69 Mnyongani FD “Duties of a lawyer in a multicultural society: a customary law perspective?” 2012

(23) Stellenbosch Law Review 354.
70 Mnyongani FD “Duties of a lawyer in a multicultural society: a customary law perspective?” Stellenbosch
Law Review 358.
71 As quoted in Mnyongani FD “Duties of a lawyer in a multicultural society: a customary law perspective?”
Stellenbosch Law Review 357.
72 Parker C and Evans A Inside Lawyers’ Ethics (Cambridge University Press Melbourne) (2007) 21–40.
LJU4802/1 47
RESPONSIBLE LAWYER (OFFICER OF THE COURT OF THE
LEGAL SYSTEM)
This approach, according to Parker and Evans, is premised on the role of a lawyer as
officer of the an officer of the court and a guardian of the legal system. While the lawyer continues
court
to be an advocate of the client, his overriding duty to maintain justice and defend
the integrity of the legal system. Even if it goes against his client’s interest, it is in
the public interest.73
Recommended reading
Swain v Society of Advocates, Natal 1973 (4) SA 784 (A)
Society of Advocates of Natal and the Natal Law Society v Merret 1997 (2) All
SA 273 (N)
Attorneys and advocates are officials of the court and should always have due respect
for the court. They should not only conduct themselves in a dignified fashion, but
mislead also maintain and promote the dignity of the court.74 They may not mislead the court,
either directly or indirectly by, for example, misrepresentations or false statements.
Lawyers may not conceal anything that the court requires for the administration
of justice. The court should, at all times, be able to rely on their honesty and the
veracity of their statements. There can be no effective administration of justice if
legal practitioners are not scrupulously truthful in their dealings with one another
and the courts.
If material facts are withheld from the court, it may lead to a decision that the
attorney or advocate involved is not a fit and proper person to practise law.75 In the
Merret case of Society of Advocates of Natal and the Natal Law Society v Merret 1997 (2) All SA
273 (N), an attorney was removed from the roll because he had misled the court in
a divorce matter, which meant that the court would never be able to trust him again.
Cassim In Ex parte Cassim 1970 (4) SA 476 (T) and Ex parte Singh 1964 (2) SA 389 (N), the
Singh
court found that the prior convictions of the applicants had to be disclosed in their
applications to be readmitted as advocate and attorney respectively.
ex parte In ex parte applications, practitioners are obliged to act in the utmost good faith
applications
and to put all relevant facts to the court so that it may have full knowledge of the
motion court circumstances of the case.76 In motion court proceedings advocates should bring to the
proceedings
attention of the court any deviations from the usual forms and offer an explanation
for this.77
Advocates and attorneys should keep abreast of the law, including the newest
authorities. Their sense of integrity should guide them to inform the court of all
relevant case law relevant case law they are aware of, even if this may be to the detriment of their client’s
case. They may not abuse court procedures or use delay tactics. In Ex Parte Jordaan:
In Re Grunow Estates (Edms) Bpk v Jordaan 1993 (3) SA 448 (O) it was held that an
application which ran to more than 800 pages, if it could be presented in far less,
amounted to this kind of abuse.
73 Parker C and Evans A Inside Lawyers’ Ethics (Cambridge University Press Melbourne 2007) 24.
74 Du Plessis 1981 De Rebus 425.
75 Ex parte Swain 1973 (2) SA 427 (N) and Swain v Society of Advocates, Natal 1973 (4) SA 784 (A).
76 Estate Logie v Priest 1926 AD 312.
77 Ex Parte Satbel (Edms) Bpk: In re Meyer v Satbel (Edms) Bpk 1984 (4) SA 347 (W).
48
contempt of court They may not act in contempt of court by, for example, insulting a judge or magistrate,
acting disrespectfully or breaking the sub judice rule.78 Contempt of court is a common
law as well as a statutory offence. Matters should be settled by the courts, not in
media the media. Therefore, legal practitioners may not make statements to the media with
regard to cases in which they are involved. Can you think of other actions of legal
practitioners that can be considered to be in contempt of court?
Legal practitioners’ duty to the court is greater than their duty towards their clients;
their duty not to disclose the confidences of a client to the court excepted. In both
cases, however, the lawyer must subordinate his or her own interests to those of the
court and the client. Integrity demands that they disclose facts, evidence and legal
arguments even if it may be detrimental to their client. They must have impeccable
court manners, even under the most provocative circumstances.
MORAL ACTIVISM: AGENTS FOR JUSTICE WITH CLIENTS AND

THE LAW
This approach affords legal practitioners an opportunity to explore ways of staying
true to their own convictions in the course of their practice of law. Lawyers, therefore,
cannot escape moral accountability of their actions by arguing that they merely play
the role of an adversarial advocate who aggressively advances the interests of a client
or just maintains the integrity of the legal system as a responsible lawyer would.79
With no role to shield them, lawyers can be held directly accountable for their own
actions. Remember that in learning unit 1 it was stated that a profession is a “public
statement” or “promise”.
The public put their trust in practitioners to carry on their profession with integrity
and honour. The courts must, therefore, see to it that practitioners are persons of
dignity, honour and integrity.80 It must be seen by the community that attorneys who
depart from the high standards of professional behaviour required of them, do not
Reyneke go unpunished.81 In Reyneke v Wetsgenootskap van die Kaap die Goeie Hoop 1994 (1) SA 359
(A), it was held that the fact that an attorney had been found guilty of contravening
the Insolvency Act and committing statutory perjury, made his integrity and honesty
questionable and detracted from his fitness to practise as an attorney. Misconduct (eg
a fraudulent misrepresentation of facts) of such a serious nature that it shows defects
in character and a lack of integrity renders the person unfit to practise.82 In Ex Parte
Moshesh Moshesh 1992 (4) SA 875 (E) it was held that the fact that Moshesh was a fugitive
from justice was incompatible with the high moral and ethical standards expected
of an attorney, and that he could not be re-admitted as an attorney.
Witnesses who are subpoenaed to appear in court perform a public duty by coming
intimidating to court and should be treated with respect. Offensive, unreasonable or intimidating
cross-
examination cross-examination should be avoided.83 Improper examination detracts from the court
procedure and creates an unfavourable image with the witnesses and general public.
It is the duty of the presiding judicial officer (eg the judge) to protect witnesses from
such abuse. In terms of our Roman-Dutch common law, advocates and attorneys have
78 R v Silber 1952 (2) SA 475 (A); R v Rosenstein 1943 TPD 65.

79 Parker C and Evans A Inside Lawyers’ Ethics (Cambridge University Press Melbourne 2007) 28.
80 Nathan v Natal Law Society 1999 (1) SA 706 (C).
81 Matthews v Cape Law Society 1956 (1) SA 807 (C).
82 Incorporated Law Society, Natal v Roux 1972 (3) SA 146 (N).
83 S v Azov 1974 (1) SA 808 (T); S v Booi 1964 (1) SA 223 (E); S v Gidi 1984 (4) SA 537 (C).
LJU4802/1 49
“qualified” a “qualified” privilege in conducting a case in court. This privilege, which gives them
privilege great latitude to put their client’s case, is based on public policy according to which
they should not be hampered in their search for the truth. They may not, however,
abuse the legal process by slandering the opposition or third parties maliciously. If
this privilege is abused by making false and slanderous statements wholly unconnected
to the case, for example, the privilege lapses and legal liability for the injury caused
may ensue. Only if an advocate or attorney is able to prove reasonable grounds for
making defamatory statements, and show that this promotes his or her client’s case,
will he or she be able to rely on this privilege.84
ETHICS OF CARE: RELATIONAL LAWYERING

Adherents of this approach see themselves as persons who have a duty to
people, communities and relationships. Feminist scholars base their arguments in
favour of the ethics of care on the fact that there is a difference between how men
and women approach ethical situations.85 The difference lies in the fact that women
Parker and Evans apply the ethics of care. The following text quoted in Parker and Evans sums up the
gender approach:
Whereas the ethics of justice is founded on the idea that everyone should be
treated equally, the ethic of care requires that no one should be hurt. Whereas
men tend to stand on principle and act according to people’s rights irrespective
of the consequences, women are more pragmatic, being more concerned to
uphold relationships and protect their loved ones from harm. Whereas the
ethic of justice assumes that one can resolve moral dilemmas by abstract and
universalistic moral reasoning, the ethics of care requires due attention to
context and the specific circumstances of each moral dilemma. And in resolving
such dilemmas, men tend to rank ethical principles, whereas women attempt
to address the concrete needs of all and to ensure that if anyone is going to
be harmed it should be those who can best bear the harm.86
It is important to note that the ethic of care is not the province of uniquely women
and that men are excluded. In learning unit 1 we explained that Gandhi adopted a
similar mediatory approach.87
AFRICAN COMMUNITARIAN LAWYERING

One of the rights protected by the Constitution is the right to culture.88 This right
finds expression in a myriad of ways, including how people settle their disputes among
customary law other things. In this regard, the Constitution enjoins courts of law to apply customary
law when it is applicable.89 The Constitution has, therefore, put customary law on
par with common law. Mnyongani90 writes that historically customary law has not
84 Preston v Luyt 1911 EDL 298; Joubert v Venter 1985 (1) SA 654 (A); Basner v Trigger 1946 AD 83
at 106; Findlay v Knight 1935 AD 58.
85 Parker C and Evans A Inside Lawyers’ Ethics (Cambridge University Press Melbourne) (2007) 31.
86 Parker C and Evans A Inside Lawyers’ Ethics (Cambridge University Press Melbourne) (2007) 32.
87 See Le Roux W “Conscience against the law: Mahatma Gandhi, Nelson Mandela and Bram Fischer
as practising lawyers during the struggle” 2001 Codicillus 20–35.
88 Section 31 of the Constitution of the Republic of South Africa, 1996.
89 Section 211(3) of the Constitution of the Republic of South Africa, 1996.
90 Mnyongani FD “Duties of a lawyer in a multicultural society: a customary law perspective?” 2012(23)
50
been familiar with the use of lawyers in disputes. This is mainly because disputes
in traditional societies were settled without the intervention of lawyers. Under the
Constitution the use of lawyers is a core requirement especially in criminal matters.
Customary law is deeply rooted in the philosophy of ubuntu (see the discussion of
ubuntu in learning unit 2). Ubuntu envisages a world where people are interrelated
and live in harmony. Although the legal system does not clearly articulate duties for
lawyers, it follows that a lawyer assisting in the settling of disputes must at all times
help the parties to re-establish harmony and a sense of relatedness that may have
been destroyed by the dispute.91 According to the African worldview, the harmony
of the collective takes precedence over individual claims.92
SELF-ASSESSMENT
(1) Is there an argument for the lawyer’s own morality in the discharge of his or
her duty?
(2) Assuming that you have answered in the affirmative, which of the approaches
above will best accommodate your assertion?
(3) Do the values of a transformative constitution play a role in how lawyers carry
out their duties?
91 See Mnyongani FD “Duties of a lawyer in a multicultural society: a customary law perspective?”

92 Mnyongani FD “De-linking ubuntu: towards a unique African jurisprudence?” 2010 (31) Obiter 141.
LJU4802/1 51
5 LEARNING UNIT 5
5 Examples of situations open
for unethical conduct
ASSESSMENT CRITERIA
1. explain the referral rule and trust accounts

2. discuss confi dentiality between a lawyer and a client and the possible
scenarios where disclosure could lead to unethical behaviour
3. explain when a conflict of interests may arise
4. explain what a contingency fee agreement is and the possible misuse of
such agreements
THE REFERRAL RULE AND TRUST ACCOUNTS
Suggested reading
Section 78 of the Attorneys Act 53 of 1979
Rules for the Attorneys’ Profession, Notice 2 of 2016, GG, 26 February 2016,
No 39740
Summerley v The Law Society of the Northern Provinces 2006 (5) SA 613 SCA
attorneys Although attorneys are considered to be officers of justice, you are not obliged to
accept a client’s brief. Before a mandate is accepted, you should consider whether
Advocates you have the ability and knowledge to do the work. Advocates, on the other hand,
are obliged to accept the brief if they are available and able to do the work. The fact
that the advocate’s political or religious beliefs conflict with those of the client does
not justify refusal of a brief. Advocates generally do not accept briefs directly from
“referral rule” clients but must be briefed by an attorney. This is called the “referral rule”. Direct
instruction is sometimes allowed, for example, from the Legal Aid Board. Direct
instruction for legal opinions is also allowed in some provinces. These are, however,
exceptions to the rule.
An attorney initiates the contract between an advocate and his or her client, negotiates
fees with and receives them from the client, instructs the advocate specifically in
relation to each matter affecting the client’s interest, oversees each step advised or
taken by the advocate, keeps the client informed, and is present as far as reasonably
possible during interaction between the client and the advocate. Attorneys take
care of matters such as the investigation of the facts, the issuing and service of
process, and the discovery and inspection of documents.93 Advocates, by contrast,
are litigation specialists. They prepare pleadings and present clients’ cases in the courts.
93 See De Freitas v Society of Advocates of Natal 2001 (3) SA 750 (SCA).
52
LEARNING UNIT 5: Examples of situations open for unethical conduct
An advocate does not report directly or account to the client but acts only in terms
of the instructions given to him or her by the attorney in relation to matters which
fall within the accepted skills and practices of his or her profession.94 What do you
think is the main reason for this?
One of the reasons why an advocate should not perform the functions of an attorney
(such as handling the money of their clients or of the opposite parties) is that there
fidelity trust fund is no fidelity trust fund for advocates. All attorneys must keep a separate trust banking
account in which all money held or received by them on account of other persons
must be deposited. No amount standing to the credit of such an account is to be
regarded as forming part of the assets of the attorney. Any shortfall in the account
may be recovered from the Fidelity Fund in proper circumstances. If advocates were
permitted to handle public money, whether by dealing with their clients’ money or
even by taking deposits of fees in advance, the danger of material prejudice for the
client exists. It is in the public interest for the courts to enforce the referral rule:
advocates may not handle any money on behalf of clients as this is the task of the
briefing attorney.
Fees may be paid only by or through an attorney. However, where an advocate has
been properly briefed (ie in substance and not merely in form), it is not improper for
him or her to receive payment directly from the client, provided this occurs with the
knowledge and consent of the attorney. In such circumstances the payment will be
regarded as having been made “through an attorney”.
reasonable fees An advocate may charge only reasonable fees for services rendered. In determining the
amount of the fee, it is proper to consider the following:
(1) the time and labour required, the novelty and difficulty of the questions
involved and the skill required to properly conduct the case
(2) the customary charges by counsel of comparable standing for similar services,
and
(3) in cases regarding money, the amount involved in the controversy and its
importance to the client
Advocates may not enter into any partnership with colleagues and may not share
their professional fees with anybody else.95
ACTIVITY 12
1. Read the case of De Freitas and Another v Society of Advocates of Natal
and Another (120/99) [2001] ZASCA 9 (9 March 2001) and answer the
following questions:
(1.1) What does IAASA stand for?

(1.2) Briefly summarise the facts of the case.
(1.3) May members of IAASA accept instructions directly from the public?
(1.4) Why is an advocate not allowed to perform the duties of an attorney?
2. John Mahlangu is an attorney who runs his own law firm. His clients are
highly influential people and his trust account is usually a few million strong.
Ms Mahlangu lives in style and her husband pays for her regular trips
94 See Rösemann v General Council of the Bar of South Africa 2004 (1) SA 568 (SCA).
95 S 9(2) of the Admission of Advocates Act 1964.
LJU4802/1 53
overseas. At the moment, John’s business account is low because work does
not pour in as usual. He, therefore, decides to “borrow” money from the trust
account with the intention to pay it back once he is paid by his clients. He
does this for a few months and every time he repays the “borrowed” money.
John becomes overconfident and sees it as a convenient way to solve his
cash flow problems. However, one month there isn’t enough payments coming
in from clients and he cannot refund the money he owes his trust account.
He is unable to repay even half the amount he “borrowed”. This happens
the following month again and soon the trust account is depleted. Discuss
the behaviour of Mr Mahlangu.
10 FEEDBACK
(1.1) Independent Association of Advocates of South Africa.
(1.2) Paras [2], [3] and [6] of the case.
(1.3) See what the judge said on this issue, specifically that there is no differ-
ence between advocates associated with a bar and advocates who are
part of the Independent Association of Advocates.
(1.4) See [11] and the discussion on trust accounts.
(2) Section 78 of the Attorneys’ Act No 53 of 1979 is important to this scenario.

This section prescribes how funds in a trust account are to be handled.
CONFIDENTIALITY
Suggested reading
Rules for the Attorney’s Profession: Rule 40.5
Wagner K and Brett C “I heard it through the grapevine: The difference between
legal or professional privilege and confidentiality” 2016 De Rebus 29 August.
confidentiality The contract between attorney and client brings about the duty of confidentiality. The
attorney may not divulge confidences or communications made to him or her by
the client in the course of their professional relationship. This applies irrespective
of whether the communication is oral or in writing, and even if the client admits
that he or she has committed a crime. The attorney’s duty of confidentiality and the
client’s corresponding right to confidentiality continue even after the attorney-client
relationship has come to an end. Only the client may waive this right.
Apart from this contractual obligation, it is also an established principle of South

African law that confidential communications made with a view to litigation as well
as all confidential communications made for the purpose of giving or receiving legal
advice or assistance, are considered to be “privileged information”. This means that
the information may not be disclosed to a court or in quasi-judicial proceedings
or offered in evidence. It is an accepted legal principle that to divulge this kind of
information would not promote the proper functioning of the litigation process or of
the legal system in its entirety.96 The privilege is the client’s and not the practitioner’s.
Privilege must be claimed in court and does not arise automatically. The attorney,
96 S v Safatsa 1988 (1) SA 868 (A).
54
in claiming it, must not act in his or her own interest or on his or her own behalf,
but for the benefit of the client. An exception to this principle would be where the
legislature expressly excludes this privilege or where the client, for example, gives
his or her consent for the advocate to give evidence on facts disclosed by the client
during consultation. Furthermore, an attorney may not withhold access to a document
in his or her possession if the client would have been obliged to hand it over had
it been in the client’s hands (eg documents that in terms of income tax legislation
have to be handed to Revenue Services for examination). Can you think of any
other examples? Communications by a client in furtherance of a criminal purpose
are not protected (eg where a client contemplates a crime and obtains advice on how
to commit it). Similarly, communications made between friends (and not in their
professional capacity as client and legal representative) are not protected.
Statutes compelling lawyers to disclose what would otherwise be confidential

information are the Financial Administration Laws Amendment Act 23 of 2015,
schedule 1; the Tax Administration Laws Amendment Act 23 of 2015; the Children’s
Act 38 of 2005, section 110; and the Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007, section 54.
ACTIVITY 13
Read the case of Waste Products Utilisation (Pty) Ltd v Wilkes and Another 2003
(2) SA 515 (W) and explain why the tape recording of a discussion between the
client and attorney was accepted as evidence in court.
11 FEEDBACK
The recoding revealed a discussion between the client and attorney in which the
client intended to fabricate evidence in order to mislead the court. While accept-
ing that the recording was unlawfully made, the court admitted it as evidence and
stated that the legal professional privilege so claimed by the client was forfeited
as a result of the criminal intention behind the communication.
CONFLICT OF INTERESTS
Suggested reading
Rules for the Attorney’s Profession: Rule 40.4 and Rule 40.8
Robusen v Van Hulsteyn, Felthan and Ford 1925 AD 12 (acting against a former
client)
Retha Meiring Attorneys v Walley 2008 (2) SA 513 (D)
S v Hollenbach 1971 (4) SA 636 (N) (appearing for both co-accused)
“Conflict of Interest: Panel discussion” 1978 (Aug) De Rebus 128
Confl ict of interest occurs where there are role confl icts or multiple competing
obligations and/or interests. Conflict may arise between the client’s interests and the
attorney’s personal interests; between their interests in their different roles; between
the attorney’s past and present clients (eg buyer/seller, insurer/insured etc) or co-party
LJU4802/1 55
client (eg in class actions, co-accused); between the interests and rights of non-clients
third parties (eg children in divorce proceedings); and in public interest conflicts.
Lewis Lewis defines a conflict of interests as:
A confl icting interest is one which would be likely to affect adversely the
judgement of the lawyer on behalf of or his loyalty to a client or prospective
client or which the lawyer might be prompted to prefer to the interests of the
client or prospective client.97
Most, if not all, legal practitioners are at some stage during their careers faced with
the problem of representing clients with conflicting interests. What a practitioner
does when faced with a conflict depends on his or her integrity and attitude.98 By
virtue of the privilege between an attorney and a client, the existence of conflict
might not be known to anyone besides the practitioner. Legal practitioners should,
when they become aware of it, recognise the problem and act accordingly.99
first There are two situations where a conflict may arise. The first is the simultaneous
representation of two or more clients and the second is where a practitioner represents
In the latter a client against a former client. In the latter situation there is usually no actual conflict;
but a problem arises when the use or disclosure of confidential information obtained
from the former client to his or her detriment becomes a possibility.100
Gough Gough gives the following example:
Two persons accused of the same offence may approach an attorney to defend
them. However, during a joint consultation it appears that certain facts are in
dispute or the two accused persons do not agree that each had similar roles.
Since there is a joint consultation, there can be no question of confidentiality
vis-à-vis the co-accused. The attorney, however, is faced with a definite conflict
and will not be entitled to continue with the representation of the parties.101
Can you think of other examples apart from the one provided by Gough?
ACTIVITY 14
(1) You are one of the managing directors for a large firm of attorneys in Gauteng.
In 2009, your firm acted for Andre Kovalenko, a successful businessman,
in a complex litigation over a period of 18 months. The firm used 168 out
of a possible 300 staff members in the matter. The matter was settled in
2011 but during its presentation your firm acquired confidential information
about Mr Kovalenko’s assets and financial affairs. In 2014 the South African
Revenue Service (SARS) commenced an investigation into the affairs of an
investment agency of which Andrei Kovalenko had been the chairperson
from 2006 to 2010. Given the firm’s experience in tax evasion and customs
and excise, SARS seeks to retain your firm to assist in this investigation. The
firm no longer represents Mr Kovalenko and is keen to acquire government
97 Lewis E A L Legal Ethics (1974) 49.

98 Gough I P “Confl ict of interests” 1987 March De Rebus 121.
101 Gough I P “Confl ict of interests” 1987 March De Rebus 121. See also in this regard S v Jacobs and
another 1970 (3) SA 493 (E) and S v Hollenbach 1971 (4) SA 636 (NC).
56
work. Prepare an opinion to your fellow managing directors in which you

set out the issues; what practical steps can be taken to avoid any conflict of
interest; and whether you think it sufficient to protect the past and (potential)
future client. Refer to case law where appropriate.
(2) Mr Mjongeni of Eersterust is missing. His wife suspects that he has been
murdered. She contacts you (an attorney) to try and find him. You suspect
that an acquaintance of yours called David, a car mechanic, is involved.
You contact him and ask him whether he knows anything. David informs you
that the police are at his door. He doesn’t reveal anything over the phone
but ask you whether or not he should co-operate with the police. What do
you tell him?
(3) A worker is in a horrifi c accident on a construction site, and sues the
construction company for his injuries. You act for the construction company
and it is fairly clear that there was negligence on their part. You advise
the company to concede to this but advise that you would contest quantum.
The injured worker’s family claims R500 000 for injuries, temporary loss of
future earnings and general pain and suffering. You request an independent
examination of the worker by your medical expert. Your medical expert finds
that, apart from the manifest external injuries, the plaintiff has an aneurysm
of the aorta. He also reports that the claim is consistent with injuries of
this type and that it is likely that the aortic aneurysm would push the claim
up to R 1.2 million if the plaintiff can show that the aneurysm was caused
by the accident. Prior to the close of pleadings and the discovery of any
documents, you are contacted by the plaintiff’s lawyers and asked if you
would consider settling the matter since the plaintiff wishes to get on with
his life and is running out of funds. He asks for a settlement of R420 000.
It is obvious that their medical expert did not pick up the aneurysm. How
would you advise your client? Do you settle on this amount? Would it make
a difference if your client (the construction company) had not paid their
public liability insurance timeously and will have to pay this amount from
the company’s profits? (Please note: An aortic aneurysm can usually be
repaired with surgery, but if it is not operated on, it will most likely result in
the death of the person.)
(4) George is arrested for murder. He tells you, his attorney, in confidence that
(in addition to the alleged murder for which he was arrested) he has killed
two other girls and reveals the location of their bodies. You are not sure if
he is telling the truth and you visit the site. There you find the two bodies
just as your client said. You know from news coverage that the parents of
the girls are desperate for news about them. What do you do?
12 FEEDBACK
(1) One of the circumstances under which a conflict of interest may arise is
between the attorney’s past and present clients. While acting on behalf of
Mr Kovalenko, the firm was privy to his assets and financial affairs. This
information was disclosed confi dentially. SARS will inevitably delve into
the financial affairs of Mr Kovalenko which will create a serious conflict of
interest for the firm. In addition, the SARS investigation will leave the firm
no choice but to breach its duty of confidentiality towards its past client.
(2) With or without the assistance of a lawyer, ordinary members of the public
have a duty to obey lawful instructions given by law enforcement agencies.
This does not to mean that David has to confess his actions. Nevertheless,
he must co-operate in their investigation.
LJU4802/1 57
(3) A formalistic answer to the scenario would not concern itself with issues of
justice. The scenario paints a picture that highlights the powerful role which
legal practitioners play in relation to their clients. In the scenario, the legal
practitioner acts for a corporation versus an individual and already the odds
are against the individual. The legal practitioner is privy to information that
may ameliorate the lot of the plaintiff, but according to a formalistic approach
to ethics it is, strictly speaking, not his or her duty to protect the interests
of the opposing side. Perhaps virtue ethics may provide some guidance in
this regard. What do you think?
(4) In unit 4 you were introduced to the different modes of lawyering. The answer
to this question will, of course, depend on the role you envisage for yourself
as a legal practitioner regarding your client, the law and society in general.
CONTINGENCY FEE AGREEMENTS
Prescribed readings
Ronald Bobroff & Partners Inc v De La Guerre; South African Association of
Personal Injury Lawyers v Minister of Justice and Constitutional Development
2014 (3) SA 134 (CC)
Masango and Another v Road Accident Fund and Others (2012/21359) [2016]
ZAGPJHC 227; 2016(6) SA 508 (GJ) (31 August 2016)
The Contingency Fees Act 66 of 1997
Boome DJ & Slabbert M “The judicial approach to contingency fee agreements
in South Africa” 2015 THRHR (78) 425
A contingency agreement is between a legal practitioner and his or her client in terms
of which the former agrees to charge the latter no fee if the claim is unsuccessfully
prosecuted. If successful (as determined between the parties), the agreement allows
the legal practitioner to recover a fee in excess of his or her normal fee since he or
she bears the risk of the losses occasioned by unsuccessful litigation. Such agreements
enhance access to justice since they enable litigants who would otherwise not be able
to afford it to obtain legal representation to prosecute their claims.102 Contingency fee
arrangements are an exception to the rule that a legal practitioner should not have a
disadvantage personal financial interest in the outcome of a matter.103 The biggest disadvantage of
such an agreement is that the parties are not on an equal footing, so the potential
for the attorney to abuse his or her position of power is of great concern.104 It is also
in this instance that unethical behaviour may manifest.
The Contingency Fees Act 66 of 1997 came into effect on 23 April 1999.105 In terms
of this Act, attorneys need to prepare an agreement in conjunction with a client in
which their hourly rate is reflected because an attorney is entitled to a maximum of
25% of the capital only 25% of the capital amount of the claim or a bill of costs, whichever is lesser.106 This
amount
means that if the capital amount is, for example, R10 000, the attorney is allowed a
102 Boome and Slabbert 1.

103 Obiter 2015 558.
104 Obiter 2015 558.
105 Proc R48 in GG 2009 of 23 April 1999.
106 Section 2 of the Contingency Fees Act. See also Obiter 2015.
58
fee of R2 500 (25%) or the amount specified in the bill of costs if it is less than 25%.
Any contingency fee agreement which does not comply with the Act is invalid.107
Unfortunately, over the years attorneys have developed a habit to contract in

contravention of the Act and charge more than the allowed 25% in a common law
Masango agreement.108 In the case of Masango and Another v Road Accident Fund and Others 2016
(6) SA 508 (GJ) of 31 August 2016, the court gave clarity on how the 25% stipulated
by the Act should be determined. You have to read the case and make sure that you
understand the difference between a “no win, no fee” agreement and a “success fee”.
You should also be able to explain how to calculate a success fee as well as whether
VAT may be added to such a fee or not. Please note that the case was adjudicated in
the High Court, Gauteng Local Division, and could be appealed against. We will
keep you informed should this happen.
ACTIVITY 15
You are an attorney and Paul Mbete comes to you for advice. He tells you that he
was seriously injured when, a few years ago, he and four others were pumping
concrete onto false work (a supporting framework) for the roof of a water tower.
The 120-ton slab collapsed and Mbete fell 20 metres. He approached a lawyer,
one Gilbert Silber, on the recommendation of a friend to claim damages for the
injury. His claim was launched in 2004 and finalised in August of 2007. Not long
afterwards, he received a payment from Silber of just over R400 000 into his bank
account. No accounting statements or explanation were given. As a result, Mbete
has no idea for how much the claim was settled, despite various requests for an
accounting statement.
He says that he has read newspaper articles that accuse Silber of charging more
than the legal amount for cases taken according to contingency fee arrange-
ments. He cannot say how much compensation was awarded and what fees were
deducted by Silber. He remembers that he signed a “common law contingency
fee agreement” entitling Silber to 40% of the total award. He now wants to know
whether or not he has a claim against Silber.
In particular, he wants to know if he can claim the difference from his attorney
together with interest from the date of payment into his account. Advise him as to
the grounds for any claim he can make and whether he is likely to be successful.
Refer to legislation and case law where appropriate.
13 FEEDBACK
The Masango and Another v Road Accident Fund and Others (2012/21359) [2016]
ZAGPJHC 227; 2016(6) SA 508 (GJ) (31 August 2016) read together with the
Contingency Fees Act 66 of 1997 provide a good illustration of the factors to be
considered in a contingency fee agreement.
107 Mofokeng v Road Accident Fund, Makhuvele v Road Accident Fund, Mokatse v Road Accident Fund, Komme
v Road Accident Fund [2012] ZAGPJHC 150 (Mofokeng) [38] and [41], see also [54] to [60].
108 See Justin John Bitter NO v Ronald Bobroff & Partners Inc v The Road Accident Fund Case Number 11069/13
(GLDJ); De La Guerre v Bobroff & Partners Inc (22645/2011) [2013] ZAGPPHC 33 (13 February 2013).
LJU4802/1 59
SELF-ASSESSMENT
(1) Explain the referral rule.
(2) Explain what a trust account is and why advocates may not be paid directly
by a client.
(3) Explain the reasonable fees an advocate may charge for services rendered.
(4) Discuss the privilege of confidentiality between a client and an attorney. To
whom does this privilege apply and when can it be overruled?
(5) Mr Jurgen Harksen arrived in South Africa from Germany in 1993 to seek relief
from what Harksen described as “mounting pressure” from his European credi-
tors. The creditors concerned had paid substantial sums of money to Harksen
in the belief that the moneys would be invested to yield high returns. Harksen
led them to believe that they were assured of being compensated because he
was the beneficiary of a large fortune – Harksen placed it at about DM 1.85 bil-
lion – that was invested in a fund known as SCAN 1000 that was held in trust.
However, when investors sought to recover their money, there was none to be
had and Harksen fobbed them off with various explanations why the trustees
were unable to release the necessary funds. Although Harksen did not admit
it, it is likely that there was neither a trust nor any trustees.
One of the creditors, Mr Siegfried Greve, pursued his claim against Harksen
by applying for Harksen’s sequestration in March 1995. Some other creditors
later on supported the application. In his founding affidavit, Greve alleged
that there was neither a SCAN 1000 fund nor any trust or trustees. Harksen
disputed those allegations, and in support of his assertion that the fund and the
trust indeed existed, he produced what purported to be affidavits of three of
the alleged trustees (Mr Hans-Josef Siegwart, Mr Ove Unri Johannson and Mr
Lars-Peter Arnemann) that seemed to have been attested before a Swiss official.
Enquiries that were made by the attorney for an intervening creditor revealed,
amongst other things, that the Swiss official had never encountered Johannson
and Arnemann, and that the attestations to their affidavits had been forged.
These facts were brought to the attention of Harksen’s legal representatives and
there was some consternation. The upshot of it all was that counsel representing
Harksen, accompanied by an attorney, travelled to Switzerland, intent on meeting
with the alleged trustees, obtaining an explanation for the forged attestations,
and securing authentic affidavits. In Switzerland they met Siegwart who told
them that the affidavits had indeed been signed by Johannson and Arnemann
respectively, but admitted that he had forged the attestation and obfuscated
why he had done so.
Counsel prepared fresh affidavits for the signature of the three deponents,
having been assured by Siegwart that Johannson and Arnemann would soon
arrive to sign them (they were said to be in the vicinity of the Mediterranean and
in New York respectively). Days went by, the two men did not arrive, various
explanations were offered by Siegwart, and when it became apparent that, in
the word of counsel, “the whole issue had become ridiculous”, counsel and his
attorney packed up and left.
After his return to South Africa, counsel prepared a memorandum recording

his impression of what had occurred. He recorded that Siegwart had been
obstructive, dishonest and fraudulent, and had never intended that Johannson
and Arnemann would appear. He went on to record the following:
60
“It is our duty to satisfy ourselves whether Jurgen Harksen has any
knowledge of the attitude adopted by Siegwart and/or Siegwart, Johannson
and Arnemann, and whether Johannson and Arnemann actually exist.
If Harksen is in any way whatsoever part of this scheme to mislead the
Court, including the representation that there is a trust of which they are
trustees, and this is a scam, we have no option but to withdraw … . If we
are not satisfied that Jurgen Harksen is a part of this unacceptable conduct
and behaviour of Siegwart and/or Siegwart, Johannson and Arnemann,
we have no right to withdraw from our mandate.”
In the following sequestration proceedings, counsel asked for the offending

affidavits to be struck out and Harksen was finally sequestrated in October.
Whether counsel ever discussed his experience in Switzerland with Harksen and,
if so, what Harksen said, does not appear in the affidavits. In April of the next
year Harksen’s provisional trustees brought an application aimed at recovering
a certain property that was believed to belong to Harksen. In the founding
affidavit it was again alleged that SCAN 1000 and the trust were fictitious.
In order to defend the claim and in following his client’s instructions, Harksen
should depose to an answering affidavit in which he once more asserts that
there is indeed such a fund, and that there are indeed trustees who administer
the fund.
What would you do as counsel in these circumstances?
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Learning unit 1: The Legal Profession 1

Learning unit 2: Philosophical approaches to ethics 11

Learning unit 3: The South African legal profession 23

Learning unit 4: Role morality 43

Learning unit 5: Examples of situations open for unethical conduct 52

Welcome to this module, Professional Ethics (LJU4802), which is offered by the

To everyone who proposes to have a good career, moral philosophy is indispensable

THE NATURE OF MORAL DISCOURSE

On what then is moral approval or condemnation based? Is a moral judgment

With a discussion, we do not mean a noisy argument or altercation, but a rational

To focus on the moral discussion –

What do you think? Is abortion right or wrong?

Encircle your answer: RIGHT/ WRONG.

Is this friend obliged to accept any of the reasons you give?

Your reasons might be something like:

(i) “It’s against my religion.”

Let us now look at the other side.

Give three good reasons in support of abortion.

(i) “It gives women a say over their bodies.”

Now let’s analyse each of the reasons:

1. define the term “legal ethics”;

WHAT IS THE MEANING OF THE TERM “LEGAL ETHICS”?

(1) protect and promote the legal profession

• protect the professional nature of legal services by stressing the obligation of

CRITICISM OF PROFESSIONAL CODES

(i) Practical concerns

(ii) Theoretical concerns

National Bar Council of South Africa: https://nationalbarcouncil.co.za

(1) Government Gazette, 10 February 2017 No 40610

• Professionals are required to have specialised intellectual knowledge and skills

CORE VALUES IN THE MAKE-UP OF “THE GOOD LAWYER”

Honesty and trustworthiness

In order to be trustworthy and honest it is important for you as a legal practitioner

There is an essential connection between honesty and truthfulness. To be honest is

• If you do not have a sense of public-spiritedness, you are to some extent a

intuition Under intuition Kronman understands “a form of direct insight or apprehension

It is also misleading to understand judgement as being based on intuition only.

deliberation On this basis, Kronman proffers his definition of deliberation:

Deliberation is neither deduction nor intuition. It is the compassionate survey

As Kronman understands it, deliberation culminates in the making of a specific

One of the main responsibilities of a judge is to preserve the community of

RULE-GOVERNED ETHICS (DUTY)

The traditional approach to legal ethics: rule-based

Is the traditional approach to legal ethics ethically acceptable?

12 Coquilette DR Lawyers and Fundamental Moral Responsibility (1995):61.

role- A legalistic or rule-based mindset leads to role-differentiated behaviour (see Unit 4)

The same applies in the South African context.

15 Ross Y Ethics in Law: Lawyers’ Responsibility and Accountability in Australia (1998):47.

Even when professionals go beyond the ethical minimum expected of them by

Contemporary virtue ethics is in part a revival of Greek thought. It is focused on

(1) What will your arguments be if you follow Kant’s arguments?

characterised In short, postmodernism is characterised by

That postmodernism has raised important points and opened up interesting

Generally, there seems to be an agreement among scholars that Ubuntu encompasses a

1. discuss practising law as a profession;

THE LEGAL PROFESSION

A similar character test applies to membership of the advocates’ profession. In

Nonetheless, the end of apartheid, the adoption of a declaration on human rights

29 Prokureursorde van Transvaal v Kleynhans 1995 (1) SA 839 (T) 850G-J.

REGULATION OF A LAWYER’S PERSONAL LIFE