The LPC and its encroachment on consumer preference and freedom of trade

The very idea of a court telling anyone that they cannot do with their body or education as they please should make any liberty-loving person cringe. Especially if such use of one’s body or property does not result in uninvited physical interference with the bodies or property of other people. If we accept this Non-Aggression Principle as valid and true, how then do we explain a struck-off from the role of legal practitioners – which by its nature constitutes undue interference with the intellectual property (law degree), body, and natural endowments of another autonomous being?

This is not to say that there should not be consequences for misconduct in the legal profession, but that the punishment should always be proportional to the misconduct. For instance, Adv. Teffo may have defrauded his clients in the past but removing him from the roll of practicing advocate is tantamount to using a sledgehammer to crack a nut. To be sure, Adv. Teffo deserved some form of punishment for the “offenses” that he had already committed but not for future offenses which have not yet taken place. Even as we accept that he might defraud more members of the public in the future if he is allowed to continue practicing law, such matters should be dealt with at the time of their happening. Unless of course if the court and the Legal Practice Council (LPC) possess prophetic foresight.

His removal from the roll of practicing advocate undermines consumer preferences which are almost always different and forever changing. For instance, X may think that Teffo is a legal fraudster whose services they will never solicit, but Y may be more understanding or even sympathetic to still want his services. After all, the fact that Teffo misled the court, defrauded his clients, or lacked decorum on one or less than 5 occasions does not necessarily mean that he will do the same in the future. More so if he is taken through rehabilitation or corrective education. Even rapists are sent to jail for the sexual offenses they have committed, not for ‘future’ offenses. They are then released into the public after serving their sentences. Some of them are even paroled before they serve their full sentences if they show signs of rehabilitation.

No judgment has ever been passed to say such ex-convicts can never talk to women or even propose love to them after they have served their sentences. It is always left to women (assuming that the victims are women) themselves to decide if they would like to date ex-rape convicts. The same principle must apply to Teffo or anyone in the same position. It should be left to legal services consumers to decide if they would like to contract Teffo’s services in the future despite what he has done.

It cannot be left to the court or LPC to decide if such voluntary market exchanges should take place or not. To give another practical example, the EFF has on many occasions disrupted important parliamentary sessions, mocked and in some instances, insulted presiding officers, and shown a lack of decorum in Parliament. However, in disciplining EFF members, it has never been ruled that because of their previous misconduct, they should be disbarred from Parliament or from contesting in the next democratic elections. The punishment has either been a fine or suspension. These are of course two seemingly different cases, but the principle is the same. There are members of the public who do not like the EFF’s conduct in Parliament who then express their dissatisfaction by not voting for the EFF but there are also those who enjoy the theatrics and continue to vote for the party.

But I digress.

What is more concerning about struck-off applications is that they elevate the LPC to a status of a universal employer. One cannot continue to practice law anywhere in the country if the LPC’s application to have them struck off from the roll has been granted. This is so even in instances where consumers may still prefer the services of the now struck-off legal practitioner irrespective of his/her misdemeanors

In a normal labor market, an employer has a “right” to dismiss an employee whose services are no longer required or, if the relationship between the two parties has broken down irretrievably. But it cannot be correct for such an employer to also seek to prevent other employers from soliciting the services of the now-dismissed employee. Alas, the LPC and the court have now undertaken to prevent all of us from contracting Teffo’s legal services indefinitely. This, we were told is in the public interest.

In conclusion, the power vested upon the LPC by the Legal Practice Act (LPA) to launch an application in a court to have any legal practitioners struck off from the roll is not only arbitrary, but overly broad. It must be challenged in the interest of consumer preferences and the freedom of legal practitioners to use their labour as they see fit.

P.S. One has only used the example of Adv. Teffo to make his case, in reality, they are many legal practitioners who have been struck off from the roll.

Lehumo Sejaphala, a contributing author for the Free Market Foundation, holds a BA Law and LLB degree from Wits University and is currently studying for an LLM. The views expressed in the article are the author's and not necessarily shared by the members of the Foundation. This article may be republished without prior consent but with acknowledgement to the author.

Lehumo Sejaphala

is a contributing author for the Free Market Foundation, holds a BA Law and LLB degree from Wits University and is currently studying for an LLM. He runs an online blog platform called the Voiceless and has contributed articles to the Mail & Guardian, City Press and OIL.

Publish date: 08 November 2022
Views: 27 694

Lehumo Sejaphala, freedom, Legal Practice Council, Rule of law / Law

The views expressed in the article are the author’s and are not necessarily shared by the members of the Foundation. This article may be republished without prior consent but with acknowledgement to the author.

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