LJU4802
EXAM PACK
, lOMoARcPSD|21997160
LJU4802 EXAMINATION
STUDENT NUMBER: 10232834
QUESTION 01
1.1 Section 1 of the Legal Practice Act 28 of 2014 defines a legal practitioner as an
admitted and enrolled advocate or attorney1. For one to qualify as a legal practitioner,
they ought to satisfy the requirements set out in section 26 of the LPA which states that
for one to be admitted as an attorney they have to be in possession of an LLB degree,
they must have completed their practical vocational training and have passed a
competency-based examination or assessment for candidate legal practitioners2.
1.2 According to section 1 of the Legal Practice Act 28 of 2014, a legal practitioner is an
admitted and enrolled advocate or attorney, and a candidate legal practitioner is defined
as a person undergoing practical vocational training, either as a candidate attorney or
as a pupil3. The difference is that a candidate legal practitioner is not admitted to
practice law independently.
1.3 Public trust, public-spiritedness and highest standard of ethical conduct.
1.4 A profession is different from a normal job, business or trade by virtue of certain
characteristics. The characteristics are as follows: professionals are expected to have a
commitment to promoting the basic good of society, which is justice; professionals are
expected to have a commitment to serving the public in matter related to their field;
professionals should have a willingness to accept personal responsibility for their
actions and for maintaining public confidence in their particular profession and finally
professionals share a sense of common identity and an established moral community4.
QUESTION 02
2.1 Postmodern ethics
2.2 Postmodernism has many characteristics, one of them being the view that universal
morality has come to an end, this means that a single and universal ethical code
applicable to and binding on everyone always, is not possible. Other characteristics of
postmodernism are the celebration of difference; the rejection of absolutes as well as
1
Legal Practice Act 28 of 2014, section 1
2
Legal Practice Act 28 of 2014, section 26
3
Legal Practice Act 28 of 2014, section 1
4
Tutorial Letter 501/3/2022, page 11
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universals; the recognition of the necessity to accept uncertainty and indeterminacy as a
way of life and again the demise of the belief in the universal validity of a particular
lifestyle or morality5.
2.3 The rule-governed ethics, the traditional approach
QUESTION 03
In Society of Advocates of SA (Witwatersrand Division) v Fischer 1996, Fischer was
found to have misled the court and that reflected badly on his character. This meant that
according to the law he was not a fit and proper person to be a legal practitioner as he
cannot be entrusted with matters related to honour, money, property and confidential
information amongst other things. Fischer in the end was accordingly struck of the roll
then but was reinstated as a member of the bar as it was said that his being struck off
the roll was a grave injustice. In Natal Law Society v Maqubela 1986, the court held that
the inherent character of the offence is not altered by virtue of the fact that the motive
for its commission is proved to be political6. The focus on this case was the nature of
the offence and this disqualified Maqubela from practising as an attorney as he was not
considered a fit and proper person to practise the law. The approach used the court in
these cases is the virtue-ethical approach. This approach emphasises the moral
character of the legal practitioner and asks whether the offence discloses a
dishonourable or disgraceful character.
QUESTION 04
4.1 During court proceedings the role of the judge is to act as an impartial “referee” who
takes into consideration the arguments of both parties before him. The judge must
determine the true version of the facts before him and objectively apply the law. Judges
strive to achieve justice. The role of legal practitioners, however, is to serve the interests
of their clients, they do not strive for justice or the promotion of the general good. Legal
practitioners must apply the law to the facts in such a way that it works in favour of their
clients.
4.2 Ethics of care is an alternative to the dominant adversarial approach in the ethics of
care is based on people who have a duty to people, communities and relationships. The
ethics of care is based on the belief that no one should be hurt as opposed to the
dominant approach which is based on the belief that everyone should be treated
5
Tutorial Letter 501/3/2022, page 27
6
Tutorial Letter 501/3/2022, page 38
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equally. Ethics of care prioritises the upholding of relationships and protection from
harm. This approach also requires due attention to context and specific circumstances
of each moral dilemma and attempts to address concrete needs of all7.
QUESTION 05
5.1 Conflict of interest happens when there is role conflicts or multiple competing
interests. Conflict of interest may occur between a client’s interest and the lawyer’s
personal interests; between their interests in their different roles; between the lawyer’s
past and present clients; between the interests and rights of non-client third parties and
in public interest conflicts8. Conflict of interest may occur where there is simultaneous
representation of two or more clients, and it may also occur where a lawyer represents
a client against a former client. In the above scenario, conflict of interest will arise. This
is because the two clients are approaching James on the same matter and the use or
disclosure of confidential information obtained from one client to his detriment is highly
possible. In this case, James would have to immediately address the conflict of interest.
5.2 A contingency fee agreement entails an agreement between a legal practitioner and
a client in terms of which the legal practitioner agrees to charge the client no fee should
the claim be unsuccessfully prosecuted. However, if the claim is successful, the
agreement allows the legal practitioner to recover a fee in excess of their normal fee
since they bear the risk of the losses occasioned by unsuccessful litigation. This
agreement also includes an agreement in conjunction with a client in which their hourly
rate is reflected because a legal practitioner is entitled to a maximum of only 25% of the
capital amount of the claim or a bill of costs, whichever is lesser.
7
Parker C and Evans A Insider Lawyers’ Ethics (2007) 32 as cited in Tutorial Letter 501/3/2022, page 55
8
Tutorial Letter 501/3/2022, page 60
