A large Gqeberha law firm accused of buying work and touting its conveyancing services through estate agents has failed in its bid to challenge a report of the Legal Practice Council (LPC) investigation committee.
Greyvensteins Inc wanted the report and the findings set aside before disciplinary hearing proceedings could commence.
Prominent attorney Liesel Greyvenstein and co-directors Alan Els and Rohan Greyvenstein Jnr had launched the review application in the Makhanda high court in terms of the Promotion of Administrative Justice Act (PAJA).
However, on Tuesday, judge Bantubonke Тokota dismissed the application with costs.
The investigation, which dates back years, was launched when the Cape Law Society (CLS) — now the LPC — received complaints about Greyvensteins’ advertising practices and relationship with estate agents.
On October 18 2022, Greyvensteins was provided with the report of the investigating committee which found the firm prima facie guilty of misconduct, which warranted a referral to a disciplinary committee for adjudication.
In court papers, the three directors said they had never been provided with the complaints.
Тokota said Greyvensteins’ application was predicated on the basis that the report was reviewable under PAJA.
“In supplementary heads of argument, counsel for the applicants submitted that in the event of the court not being amenable to a review in terms of PAJA, then the decisions are reviewable on the grounds of rationality in terms of the principle of legality.
“In my view, an investigation per se does not take the form of a court, tribunal or commission of inquiry where parties are not only allowed to participate, but such participation includes cross-examination of witnesses and final submissions with regard to the final outcome thereof.
“In my view, the nature and character of the investigation is a process which entails an active search of information to support or refute the allegations.
“The committee is not only required to rely on the information given during information gathering but can also rely on information obtained from documents received.
“In the course of such investigation, the committee is not necessarily obliged to consult affected persons, save in certain circumstances.”
The judge said such an investigation was aimed at collecting information to enable the committee to make recommendations for appropriate action, if any, to be taken.
“The crux of the case in deciding whether PAJA applies, lies in the determination of whether the investigation and the production of the report adversely affected the applicants’ rights, and whether it had a direct external legal effect on them.
“If they are subsequently charged with misconduct, they will be given an opportunity to present their side of the story to refute the findings in the disciplinary tribunal.
“I therefore conclude that the committee’s report and the decision to refer the matter to disciplinary process does not constitute an administrative action and therefore is not reviewable under PAJA.”
Тokota said the committee was required to investigate all complaints of misconduct against legal practitioners.
“In my expression a prima [facie] misconduct is not a factual finding or determination of culpability, but merely the expression of a prima facie view based on available information.”
He said this was not prejudicial to anybody.
“If the recommendations in respect of disciplinary proceedings were to be implemented, the implementation would take place in terms of processes that would afford the applicants a full opportunity to present their case.
“There is one last aspect which calls for comment.
“I wish to express my difficulties and frustration I suffered on perusing the papers in this matter.
“The application itself consists of more than 700 pages.
“The papers were drawn, and the response thereto was also drawn, in such a difficult manner so as not to enable one to understand logically and chronologically the events leading to the outcome of the impugned report.
“The affidavits are filled up with bulky annexures.
“One has to trawl through the whole annexure in search of the relevance thereof.”
Approached for comment on the judgment, Liesel Greyvenstein said: “The judge ruled that the application [against the LPC] was premature in that what we raised in the application could be raised in due course.
“Our counsel is considering the ruling, after which we will consider our options.”
The Herald
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