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Professional Ethics : LJU4802
Previous Exam Questions & Answers ’09 – ‘14
25 pointer Questions & Answers
Discuss the requirement of being a ‘fit-and-proper’ person to practice as a lawyer in
South Africa? 3x (25)
The practice of Law as a Profession?
Law is practised as a profession and is not merely a job. Bruce Ackerman referred to the
law as a “calling” based on “…a sound moral character is essential to professionalism”.
A legal professional’s conduct should justify the trust placed in you by your clients,
adversaries, and the courts and the whole of society. Lawyers find their social role
permeated by ethics.
A formalistic and legalistic philosophy of law, focuses exclusively on rules and can easily
lead to an ethically restricted approach when it comes to the question of professional
responsibility.
As will be shown later the rule-based approach to professional conduct has led to a very
restrictive interpretation of three claims traditionally made in the name of a lawyer:
(i) that he or she acts like a professional,
(ii) that he always remains morally a fit and proper person for the legal profession - and
(iii) that he or she has a duty to obey the law.
The requirement of a good character or of being a “fit and proper person’’
Even those with all the relevant legal qualifications and degrees will be admitted to the
legal profession only once they have proven that they are indeed “fit and proper
persons” for the legal profession. This is subject to extensive character screening.
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Admission of Attorneys:
Section 15(1)(a) of the Attorneys Act 53 of 1979 states that a court may only enroll an
applicant 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
practice as an attorney”.
Admission of Advocates:
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 the roll
if the court “is satisfied that you are not a fit and proper person to continue to practice as
an advocate”.
Roman Law:
The Theodosian Code, a compilation of Roman law issued in 438 AD, required that
advocates be of “suitable character” with praiseworthy lives.
Reason for character screening:
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.
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McDowell “The usefulness of ‘good moral character’” 1993 Washburn Law Journal 323 -
“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.
The standard of a “good moral character” [while often a fuzzy concept] has often been
applied in arbitrary and prejudicial fashion, favouring those of a particular race, gender,
politics and economic worth.
Rhode “In the interest of justice: Reforming the legal profession (2000)” argues that in the
19th century in the United States, the character requirement was used to keep
unpopular groups of people out of the legal profession.
Today, individuals in the United States (and in South Africa) are typically denied
admission on account of violations of the law (the violation of criminal law being
considered as more reprehensible than that of civil law), acts involving dishonesty or
fraud, abuse of the legal process, disregard for financial obligations and failure to file tax
returns, mental or emotional instability, and evidence of alcohol and drug abuse.
In this respect, McDowell maintains that, if possible, a distinction should be made
between non-conformist actions that are valuable and enrich society, and those that are
unethical and damaging.
While the concept of a “good moral character” should not be used to stifle innovation,
difference and social criticism, it should nevertheless be retained as a powerful inhibitor
of unethical conduct and as something to which to aspire.
Whether somebody is a “fit and proper person” to practice law as an advocate or
attorney is essentially a discretionary value-judgment on the part of the court (see Jasat
v Natal Law Society 2000 (3) SA 44 (SCA) 51E;).
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The court has an inherent common law power to regulate the legal professions and
therefore remains the final arbiter of what is appropriate in this regard (see Kaplan v
Incorporated Law Society, Transvaal 1981 (2) SA 762 (TPD) 770G–784D).
The role of politics:
In SA the court’s judgment i.r.o who is “an appropriate person” was often influenced
by politics.
Mahatma Ghandi - applied to be admitted as an advocate of the High Court of Natal, his
application was opposed by the Law Society of Natal opposed because he was a person of
NLR 263)
Indian origin and as such not a “fit and proper person” (In re Gandhi 1894 but
extensively dealt with in Gandhi’s autobiography (An Autobiography; Or my Experiments
with Truth (1927) 121–123).
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. In this case (Incorporated Law Society v Wookey 1912 AD 623) 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.
Bram Fischer - The political abuse of the “fit and proper person” standard is well
illustrated by the case of Bram Fischer, a brilliant, highly regarded, senior advocate
attached for many years to the Witwatersrand Bar.
