LJU4802 PROFESSIONAL ETHICS PORTFOLIO ANSWERS

LJU4802 PROFESSIONAL ETHICS PORTFOLIO ANSWERS. The public put their trust in lawyers to carry on their profession with integrity and honor. If attorneys depart from the high standards of professional behaviour required of them, they should be punished. In Society Of Advocates Of SA (Witwatersrand Division) v Fischer, 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:1 “It is the mandate of a lawyer to further the administration of justice in regards 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” In Incorporated Law Society, Natal v Hassim, 2 an application to have Hassim struck off the roll of attorneys was lodged. 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. 1 Society Of Advocates Of Sa (Witwatersrand Division) v Fischer 1966 (1). Sa 133 (T). 2 Kwazulu-Natal Law Society v Hassim (2487/09) [2009] ZAKZPHC 76 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 “dishonorable 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.3 Striking-off is usually reserved for attorneys who have acted dishonestly, while transgressions not involving dishonesty are usually visited with suspension from practice. If an attorney is struck from the roll, he or she will not be readmitted unless the court can be satisfied that the applicant has genuinely reformed, that a considerable period elapsed since he or she was struck off and that the probability is that, if reinstated, he or she will in future conduct him- or herself honestly and honourably.4 Question 2 According to Wasserstrom, lawyers are “hired guns” agents and advocates beholden first and foremost to their clients’ interests, held in check only by the limits of the law. 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”. He investigates the possible justifications for the hired-gun approach to legal practice but steers the argument in the opposite direction for the following four reasons: 3 Natal Law Society v Maqubela 1986 (3) SA 51 (N). 4Law Society of the Cape v C 1986 (1) SA 616 (A)). The legitimacy of role differentiated behaviour can be sustained only if the adversarial criminal law system where the prosecutor and accused act as opponents, is itself legitimate. However, we have some cause for scepticism about the justice and effectiveness of the present legal system. 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. Lawyers cannot adopt a pure role differentiated perspective as easily as medical doctors can 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. Lawyers pay the 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 one’s life. Cleverness and ruthlessness in professional life may have a devastating effect on a lawyer’s private life. The professional life one chooses determines what kind of person one becomes.5 Question 3 In line with the deeds registry’s perspective, the Supreme Court decision of Bester and Others NNO v Schmidt Bou Ontwikkelings CC (696/11) [2012] ZASCA 125 inadequately resolved the challenge of an erroneous transfer of property, which resulted in the execution of an invalid deed of transfer. Section 14 and 16 of the Deeds Registries Act 47 of 1937 ("the Act”) provides the practices and procedures for the registration of deeds. Section 16 further provides for the general rule for the transfer of land from one person to another, which may only take place by means of a deed of transfer, unless another law provides otherwise. On the other hand, section 14 provides another general rule which states that the registration of transfers of land must follow the sequence of their relative causes. The deeds registry is an office mandated with keeping records of ownership of property and real rights over immovable property. All acts of registration effected in the deed’s registry are......................