50.
| 50.1 | The Council shall have disciplinary jurisdiction over all members no matter where the conduct which is, or allegedly is, unprofessional or dishonourable or unworthy is perpetrated |
| 50.2 | The Council may assign its duties in relation to the exercise of its disciplinary functions to any committee appointed by it in terms of section 67 of the Act, subject to the provisions of the Act and these rules. |
| 50.3.1 | shall consider any complaint made by or on behalf of any person feeling aggrieved by reason of any alleged unprofessional or dishonourable or unworthy conduct on the part of any member; |
| 50.3.2 | may, of its own motion, exercise its powers under these rules notwithstanding the absence of any complaint, in which event the provisions of this rule 50 shall mutatis mutandis apply; |
| 50.3.3 | may utilise admitted attorneys within its employ in order to correspond with the complainant and the member in respect of whom the complaint is made and to investigate a complaint. |
| 50.4 | Save where the Council otherwise decides a complaint shall be in writing and in the form of an affidavit, or in any such form as the Council may from time to time require, and shall set out in detail the facts upon which the complaint is based. A complaint shall be lodged with the secretary. |
| 50.5 | The Council may require a complainant to provide, on affidavit if requested, further particulars concerning any aspect of the complaint. |
| 50.6 | Upon receipt of a complaint, and further particulars where these have been furnished, the Council may: |
| 50.6.1 | where it is of the opinion that the complaint does not disclose a prima facie case of unprofessional or dishonourable or unworthy conduct or where a complainant has neglected or refused to comply with the requirements of the Council under these rules, dismiss the complaint and inform the complainant accordingly; |
| 50.6.2 | where it is of the opinion that a prima facie case of unprofessional or dishonourable or unworthy conduct on the part of the member concerned is or may be made out: |
| 50.6.2.1 | furnish the member with particulars of the complaint and call upon the member to furnish the Council in writing within such time as the Council may direct, with an explanation in answer to the complaint, and may require such explanation to be verified by affidavit; or |
| 50.6.2.2 | at any time and whether or not it has proceeded under rule 50.6.2.1, call upon the member to appear at such time and place as it may determine to explain or elucidate or discuss the matter. |
| 50.7 | When, upon a consideration of the complaint and the member's explanation in answer thereto or elucidation of the matter, it is of the opinion that no prima facie case of unprofessional or dishonourable or unworthy conduct has been made out, dismiss the complaint and notify the complainant and the member accordingly. |
| 50.8 | When, upon a consideration of the complaint and the member's explanation in response thereto, it is of the opinion that an adequate answer to the complaint has not been given the Council shall formulate in writing a charge or charges of unprofessional or unworthy or dishonourable conduct and require the member to furnish it with the member’s answer to such charge or charges within a stipulated time. |
| 50.9 | Upon receipt of the member’s and complainants answers, or where no answer is received, on the basis of the facts before it, the Council shall either dismiss the complaint, and notify both the complainant and member accordingly, or find the member guilty of the charge or charges, or resolve to conduct a formal enquiry as provided for in rule 50.15 below. |
| 50.10 | Where the Council makes a finding of guilty it shall notify the member accordingly and afford the member an opportunity to place before it in writing, on affidavit if requested, within a specified time, such facts and submissions as are relevant to the nature of the sanction to be imposed. |
| 50.11 | Upon receipt of any facts or submissions concerning the nature of the sanction to be imposed upon the member the Council shall consider the evidence before it, and impose upon the member a sanction authorised by the Act. |
| 50.12 | If a member is dissatisfied with the finding and sanction imposed he shall have the right to call for a formal enquiry to be conducted as provided for below. |
[RULE 50.13 BELOW APPLIES TO THE LSNP, KZNLS AND FSLS ONLY]:
| 50.13 | Where the Council resolves to hold a formal enquiry, or where a member has called for such an enquiry as contemplated above, the Council shall refer the matter to a Disciplinary Inquiry Committee appointed by it. The Committee may consist of two or more members, who shall not have participated in the finding and sanction imposed upon the member as provided for above. The Council may also appoint any practising attorney or advocate or an employee who is admitted as such as a pro forma prosecutor in the leading of evidence against, and the presentation of the case against, the member, at the enquiry. |
[RULE 50.13 BELOW APPLIES TO THE CLS ONLY]:
| 50.13 | Where the Council resolves to hold a formal enquiry, or where a member has called for such an enquiry as contemplated above, the Council shall refer the matter to a disciplinary enquiry committee appointed by it. The committee may consist of two or more members, who shall not have participated in the finding and sanction imposed upon the member as provided for above. The Council may also appoint any practising attorney or practising advocate who is admitted as such as a pro forma prosecutor in the leading of evidence against, and the presentation of the case against, the member, at the enquiry. |
| 50.14 | The Council shall have the power to rescind any finding of guilty pursuant to which a member requests that a formal enquiry be conducted, if it is satisfied,on the advice of the pro forma prosecutor appointed by it, that there are no reasonable prospects of the charges being proven at a formal enquiry. |
| 50.15 | A formal enquiry shall be commenced by way of the service on the member personally of a summons requiring the attendance of such member at the enquiry and which summons shall contain the charge or charges of unprofessional or unworthy or dishonourable conduct alleged against the member. Such summons shall be issued under the hand of the president or the secretary or a duly authorised employee of the society, and shall be served not less than TEN (10) days before the date appointed for the hearing, in the computation of which period weekends and public holidays shall be excluded. |
| 50.16 | A member appearing at an enquiry conducted under this rule shall be entitled to legal representation. |
| 50.17 | The duties, functions and powers of the disciplinary enquiry committee relating to its conduct of a formal enquiry shall be the following, namely: |
| 50.17.1 | to determine through its chairperson and subject always to the provisions of these rules and of the Act the manner in which the enquiry shall be conducted; |
| 50.17.2 | to exercise the powers vested in the Council under section 71(2)(a) of the Act; |
| 50.17.3 | to dispense with any requirements regarding summonses, notices, affidavits, documents, service or times in any case where it appears to it to be just so to do or to extend the time for doing anything in connection with the conduct of the enquiry; |
| 50.17.4 | mero motu, or upon the application of any affected party, to adjourn the enquiry upon such terms as to costs, or otherwise, as it deems fit; |
| 50.17.5 | to cause the enquiry proceedings to be recorded in such a manner as shall enable a true and correct record of such proceedings to be available and to procure that each of its decisions shall be recorded in writing and be prefaced by a statement of its findings in relation to the facts investigated during the course of the enquiry and shall be signed by the chairperson of such committee so authorised; and to procure further, that each such decision shall be filed in the records of the society; |
| 50.17.6 | mero motu, to treat as a separate complaint of unprofessional or dishonourable or unworthy conduct, any act or omission on the part of a member attending, or required to attend, an enquiry being conducted under this sub-rule where such act or omission is calculated to interfere with, or otherwise interferes with, its proper consideration, investigation and determination of the complaint forming the subject matter of such enquiry and to refer any such separate complaint to a disciplinary committee for consideration and investigation in accordance with the provisions of this rule 50; |
| 50.17.7 | to exercise such ancillary powers as it shall consider reasonably necessary to enable it to discharge its duties, functions and powers hereunder; |
| 50.17.8 | to do all things necessary to ensure that all disciplinary proceedings failing within its duties, functions and powers are dealt with justly, expeditiously and in accordance with these rules; |
| 50.17.9 | at the conclusion of the enquiry, to find the member not guilty of the charge forming the subject matter of the enquiry or guilty of unprofessional or dishonourable or unworthy conduct in relation to such charge and in the event of a finding of not guilty, to notify the member and the complainant, if any, accordingly. |
| 50.18 | Upon a finding of guilty under rule 50.17.9 the disciplinary enquiry committee may, having considered the member's disciplinary record, and such other evidence and submissions relevant to the sanction to be imposed by it which are placed before it by the pro forma prosecutor and the member either: |
| 50.18.1 | impose upon such member such punishment as is provided for in section 72 of the Act, in which event it shall notify the member concerned of its determination and of the punishment imposed; or |
| 50.18.2 | where it is of the opinion that the nature of the charge upon which a shall have found the member guilty is such as, having regard to the member's disciplinary record, warrants an application for the striking off of such member from the roll of attorneys or for his suspension from practice, make a recommendation to the Council accordingly and simultaneously forward the record of the enquiry to the Council for such action as the Council may elect to take and in which event it shall notify the member concerned of its determination and recommendation aforesaid. |
| 50.19 | The disciplinary enquiry committee shall, save to the extent set forth in these rules, preserve the confidential nature of all its enquiry proceedings. |
| 50.20 | On receipt of a recommendation made to it by the disciplinary enquiry committee under rule 50.18.2 the Council shall consider the record of the enquiry and resolve either: |
| 50.20.1 | to adopt the recommendation of the disciplinary enquiry committee, in which event it shall proceed to take action for the striking off of the member from the roll of attorneys or for his suspension from practice, as it may consider appropriate; or |
| 50.20.2 | not to adopt the recommendation of the disciplinary enquiry committee, in which event, it shall advise such committee accordingly and refer the matter back to such committee whereupon such committee shall impose such punishment on the member as is referred to in Rule 50.18.1; or |
| 50.20.3 | with the consent of the member, dispose of the matter mero motu. |
| 50.21 | A member found guilty by a disciplinary enquiry committee shall have the right to appeal afforded him under the provisions of section 73 of the Act. |
| 50.22 | If at the conclusion of an enquiry the member is found guilty in terms of section 72(1) of the Act and an order is made that the member is to pay the costs incurred by the Council in connection with such an enquiry in terms of section 72(1)(a)(iv) costs shall be calculated in accordance with a tariff determined by the Council from time to time and in default of such determination shall be calculated in accordance with the High Court tariff applicable to civil litigation. Without derogating from the generality of any such order for the payment of costs, such costs shall include: |
| 50.22.1 | the costs of recording, transcribing and preparing copies of any record; |
| 50.22.2 | costs incurred by the Council in the employment of any pro forma prosecutor; |
| 50.22.3 | the costs incurred by the Council in respect of the employment of an accountant or accountants or other person appointed to investigate and report on the member's accounting records, and of any person appointed by the Council to investigate and report on any other documents or records or things relating to the member's practice or former practice; |
| 50.22.4 | the costs of procuring the attendance of witnesses and their witness fees, including those of the complainant. |
| 50.23 | The member concerned may on request be furnished by the secretary with copies of the record of the enquiry or extracts therefrom against payment by the member of the cost of the making those copies calculated according to the said tariff. |
| 50.24 | Subject to the provisions of the Act, the provisions of this Part VII shall apply, changed as appropriate, in respect of a candidate attorney whose alleged conduct is being enquired into; provided that the Council may require the member with whom the candidate attorney is serving articles or under a contract of service to report in writing to the Council on any aspect of the matter or to attend during any stage of the enquiry and there, inter alia, to make such verbal report or give such explanation relating to the matter as the Council may deem fit. |
| 50.25 | If the enquiry is held by a committee appointed by the Council under section 67 of the Act and it appears to the committee at any stage during the course of its enquiry that the evidence then before it is likely to warrant the suspension or cancellation of the articles of clerkship or contract of service, the committee shall refer the matter to the Council and inform the candidate attorney and the member with whom he is serving articles or under contract of service accordingly and the Council may then itself continue and conclude the enquiry or may refer it or any aspect thereof back to the committee. |
[RULE 50.26 BELOW APPLIES TO THE LSNP, KZNLS AND FSLS]:
| 50.26 | The Council may, for the general information of members or of the public or of both, in such manner and to such extent as it may deem fit, publish or allow or arrange for the publication of information relating to an enquiry under section 71 of the Act. |
[RULE 50.13 BELOW APPLIES TO THE CLS ONLY]:
| 50.26 | The Council shall, for the general information of members and the public, publish or allow or arrange for the publication of the name of the member, the ultimate finding and the sanction imposed in respect of all proceedings in terms of this rule 50, provided that in the case of offences where the sanction imposed is a warning, a reprimand or a fine not exceeding an amount determined by Council from time to time; the information will not be formally published but will be made available to any member of the public, on enquiry, for a period of 24 months, calculated from the date on which the ultimate finding and sanction imposed became final. |
| 50.27 | Subject to the provisions of the Act or any other laws, no individual and no group of individuals, and no body corporate or other association, not having, in the opinion of the Council, an interest in the subject matter of an enquiry, shall be entitled to information relating to it. |
| 50.28 | No decision taken by a committee in any proceedings in terms of this rule 50 shall be invalid by reason only of the existence of a vacancy on the committee or of the fact that the composition of the committee is changed after the commencement of the enquiry as a result of the death or incapacity or resignation of a member of a committee, or for any other reason, provided the decision was taken by the requisite majority of the members of the committee who were present for the duration of the proceedings. |
