In an unprecedented move the Transvaal Law Society is considering applying for an exemption from provisions of the Access to Information Act Sechaba ka’Nkosi The Law Society of the Transvaal is divided over an unprecedented plan to ask the Minister of Justice for exemptions to key legislation on access to information and fair administrative procedure to help it carry out a disciplinary action. The society considered the option after being challenged in court by Johannesburg lawyer and businessman Tiego Moseneke, whom it is seeking to strike off the roll of attorneys, and has briefed its own lawyers on the matter. Moseneke is challenging the fairness of the way the case against him has been executed and the fact that the society went public about its intention to strike him from the roll before giving him details of the charges. The charges relate mainly to allegedly sloppy handling of clients’ affairs, rather than intentional misappropriation of funds. The exemptions from the legislation were first raised at the society’s council meeting last month during a discussion of the Moseneke matter at which old and new guard members clashed over the merits of the case.
Members of the society suggested it had unfairly denied Moseneke information about the case against him and flouted basic rules of fair administrative procedure. It was then that council member Danie Olivier argued that the society should seek exemption from provisions of the Administrative Justice and Access to Information Acts. The Acts respectively deal with the basic rules governing fair administrative procedures in disciplinary actions, as well as citizens’ basic right to information held by any organ of state or statutory body. The Acts are aimed at strengthening the transparency of government – and bringing it in line with the Constitution – by making information available to citizens. The tussle over the law society’s unprecedented suggestion of applying for exemptions follows an intervention in the matter last month by Minister of Education Kader Asmal, who said the society’s conduct was ”highly irregular and contrary to any notion of just administrative action”. This week Olivier stood by his suggestion, claiming the law society council was considering the move to protect the interests of the public. ”The problem is that attorneys may get a loophole in fulfilling their obligations and it gets difficult for the law society to strike them off the roll,” said Olivier. ”That is an administrative action and we have to act accordingly to protect the interests of the public.” At last month’s council meeting, members affiliated to the National Association of Democratic Lawyers (Nadel) protested about the society’s failure to furnish Moseneke with reasons for the application and copies of the documents relating to the decision during the council meeting. The council meeting minutes show council member Muzi Msimang warned against pursuing the striking- off application, arguing the society is subject to the provisions of the Administrative Justice Act. Msimang also expressed concern in the same meeting that the decision against Moseneke may have been taken without proper consideration to the society’s own rules. ”It was submitted by Msimang that the law society would be subject to the provisions of the Administrative Justice Act and that members were entitled to obtain information from the law society,” the minutes read. Although the society is still unresolved on the exemptions, it has been noted in the minutes of the meeting as a possible option. The society’s representatives stressed this week that no decision has been taken on the matter. However, they confirmed that the society was seeking legal opinion on possible exemptions.
At the same meeting, the society’s vice-president, Mohamed Husain, also expressed his reservations about the manner in which the matter was being handled and chastised disciplinary head Piet Langenhoven for going public with the application to remove Moseneke’s name from the list of attorneys. ”Husain said that the law society must ensure that its disciplinary procedure was in accordance with the requirements of administrative justice and expressed his concern about the fact that it appeared that the law society had delayed furnishing Moseneke with the required documents for more than two months,” the minutes say. Husain, who is also Nadel’s vice-president, is reported to have demanded that the copy of the society’s application against Moseneke should be made available to all councillors. Justice ministry representative Paul Setsetse said Minister of Justice and Constitutional Development Penuell Maduna has not been approached by the society yet.