Crocodile lawyers killing the ideal of the rule of law
At the opening of the High Court early this year, the deputy attorney general spoke strongly about lawyers who do not submit audited certificates to the attorney general’s office as prescribed by law. This means that clients’ money, held by many law firms is not safe. It is this failure to submit these audited statements that gave space for Bheki Simelane to plunder his clients’ money at will.
SIKELELA HLATSHWAYO reports.
Laws do not mean much if those who are supposed to adhere to them do not do so. Nor if the legal acts are contradictory or ambiguous, thus creating ways for the authorities to evade their responsibilities toward the public or to take arbitrary action against perceived wrongdoers. Chris W. Ogbondah
Like a dead fish it is rotting from the head.
This is an apt description of the kingdom’s dire situation as it lurches from crisis to crisis under the leadership of Barnabas Sibusiso Dlamini’s government. Apart from the much-publicized fiscal crisis, this government is faced with another, just as serious crisis – the erosion of the rule of law.
According to Deputy Attorney General Sabelo Matsebula, legal practitioners are flouting the Legal Practitioners Act, 1964 which defines their duties and responsibilities toward the citizens.
“Out of over 100 private law offices in the kingdom, not more than twenty have submitted the audited certificates of their accounts as required by the law for a year or two and even more for other practitioners, he said, adding:
“It means that our courts are serviced mostly by crocodile attorneys.”
In its investigation, The Nation has discovered that none of the current law firms operating in the country bothered to submit the audited certificates last year.
However, the exact figure of the law firms could not be established because the Law Society of Swaziland does not keep an updated register of its membership.
Out of more than 100 law firms in 2009, only seven complied with the Act in that year while only three did so in 2008.
Matsebula told the practising lawyers to submit their duly audited certificates with an explanation for the delay within six months failing which the AG’s office would have no option but to enforce the law.
Given the present situation, he expressed concern that the funds, which run into millions of emalangeni in the trust accounts, were not safe in the hands of unaudited attorneys. He said the submission of the audited certificates was meant to safeguard the interests of both attorneys and their clients.
According to Section 24 of the Act, every practising legal practitioner shall, once each year, or at such other time as the attorney general may require, furnish him with a certificate signed by public and chartered accountants.
The sole purpose of this Act, according to Matsebula, is to ensure that the legal practitioners do not help themselves to the clients’ money deposited in their trust accounts.
For instance, the late Bheki G. Simelane misappropriated hundred thousands of emalangeni belonging to his clients held in his law firm’s trust account.
Despite the recent conviction of his partner and brother, Thembela Simelane, the clients could not recover their money because there was nothing left in the trust account. They ended up sharing E55 000 recovered from the little amount that Thembela had managed to raise as compensation while others had been swindled as much as E400 000.
The Legal Practitioners Act, 1964, therefore, prohibits the use of the funds kept in the trust accounts by the attorneys because they actually do not form part of their law business assets.
In terms of Section 24, every accountant employed by an attorney must report without delay to the AG problems relating to the balances shown on the trust account in both the ledgers of the attorney and trust banking account.
Should an attorney fail to comply with Section 24, that attorney is guilty of an offence of unprofessional conduct. On conviction, the lawyer is liable to a fine of E500 or imprisonment for 18 months or both.
That attorney is also liable to be struck off the roll or suspended from practice.
Although they are both responsible for upholding the rule of law, the LSS and AG are busy blaming each other.
LSS Secretary General Simanga Mamba told The Nation that the AG had not formally complained to his organisation about the lawyers contravening Section 24 of the Legal Practitioners Act.
“Inasmuch as this borders on unprofessional conduct, the AG should have raised this issue formally with the Law Society, he said, adding:
“The Law Society hasn’t yet received a formal complaint about our members’ failure to submit audited certificates to the AG.”
Mamba, who was a bit cagey during the interview, could neither deny nor confirm the small number of less than 20 law firms which had submitted their audited certificates to the AG office in recent years.
Probed further, he shielded his members by evading questions about the misappropriation of the clients’ funds by lawyers.
On the other hand, the deputy AG revealed that the non-compliance with the Act had become a norm among the practising lawyers in the noble profession.
“I really do not understand why the attorneys do not take this seriously because it borders on unprofessional conduct and dishonesty, he said, adding:
“One can blame the Law Society for having completely failed to regulate the profession over the years.
Matsebula pointed out that it was the duty of the lawyers to submit the audited certificates to the AG as per the Legal Practitioners Act, which regulates them in their course of legal practice. The deputy AG further explained that only the audited certificates are a preventive measure against the embezzlement of clients’ funds in the trust accounts.
Matsebula hastened to warn that the AG’s office could not rely only on the audited certificates because other lawyers collude with accountants to issue misleading certificates.
“One good example is that of the now defunct Mthembu Mabuza Attorneys who submitted a misleading audited certificate issued by a Manzini based audit firm in 2003, he said, adding:
“Following the endless complaints of clients about its misappropriation of funds, we were forced to do our own audit which unearthed the rot. He admitted that his office was to blame for the breakdown of the rule of law through the mushrooming of crocodile lawyers.
Asked why he was not enforcing the law to protect the unsuspecting citizens from the predatory crocodile lawyers, he gave the excuse of a shortage of staff.
When presented with the alternative of barring the lawyers from practising in the courts, the deputy AG trumpeted the legal cliché of “one is innocent until proven guilty.
Yet, there is overwhelming evidence in his hands of hundreds of crocodile lawyers.
Then Principal Secretary at the Ministry of Justice and Constitutional Affairs Sicelo Dlamini admitted his ministry’s failure to address this problem. Without mincing words, Dlamini said, indeed, the buck stops with the AG’s Office which acts as the eyes and ears of government with regard to matters of the law.
“The AG and Law Society have a reciprocal duty of protecting the unsuspecting public from dishonest lawyers, said Dlamini, adding:
“I just don’t understand why they waste time in finger-pointing instead of upholding the rule of law by enforcing the Legal Practitioners Act. The PS told The Nation that this was an old issue but nobody seemed to care about its implications in the administration of justice in the country.
“This is one of the areas in which we have failed the citizens by allowing lawyers to ride roughshod over the citizens when there is a law in place to deal with them, he said, adding:
“But it’s a problem of self-regulation.
“If the Law Society was a statutory body, government would have found a lasting solution to this.” Dlamini also wondered why the AG was not barring the crocodile lawyers from practising in the courts because their unprofessional conduct warranted that kind of action.
The PS also expressed concern over the AG and Law Society’s inability to rein in the dishonest attorneys in the name of protecting the integrity of the noble profession.
He emphasized that the Law Society had a duty to promote uniform practice and discipline among the legal practitioners.
Dlamini quashed the lame excuse of the deputy AG about a shortage of staff in the AG Office.
“I’d only buy that story if only the AG could tell me that he had been unable to finish the work load of audited certificates due to a shortage of staff, said Dlamini, adding:
“Or, the office was unable to cope because such work is piling in the office.”
His sentiments were shared by the Director of Public Prosecutions Mumcy Dlamini who recalled that former Chief Justice Stanley Sapire had once issued a directive to bar crocodile lawyers from the courts.
However, attempts to get a copy of the directive were futile because Supreme High Court Registrar Lorraine Hlophe said she did not find it in the files when she assumed office.
Quite aware of the glaring erosion of the rule of law, Chairperson of the Ministry of Justice Parliamentary Portfolio Committee Bheki Mkhonta condemned such disregard of the law.
“I think we have a serious judicial crisis in this country because even the judges are complaining about difficulties in the execution of their legal duties, he said, adding:
“This is attributed to the fact that this country is in a constitutional transition. So, these bogus lawyers are taking advantage of that.”
The MP appealed to the responsible ministry to expedite the process of law reforms to align the laws with the constitution.
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