As with judges, a code of professional conduct for lawyers is an essential tool for the maintenance of the integrity of the profession and, consequently, the quality of access to justice in a country. The UN Basic Principles on the Role of Lawyers state that “[c]odes of professional conduct shall be established by the legal profession through its appropriate organs, or by legislation”.{{1}}
In order to uphold the integrity of the legal profession lawyers must be held accountable in fair proceedings before independent bodies, for breaches of established standards of professional conduct.
Complaints against lawyers for misconduct in their professional capacity should be “processed expeditiously and fairly under appropriate procedures.”{{2}} They should be decided “in accordance with the code of professional conduct and other recognized standards and ethics of the legal profession.”{{3}}
International professional standards prescribe that the body responsible for investigating and adjudicating on allegations of misconduct by lawyers should be independent and impartial, and ensure that proceedings are conducted fairly and following proper procedure.{{4}} A lawyer accused of professional misconduct must have “the right to be assisted by a lawyer of their choice”.{{5}} He or she should be entitled to notice of the complaints against him or her and have adequate time and facilities to prepare and present a defence. Any sanction against a lawyer for misconduct should be proportionate. The lawyer should be entitled to independent judicial review of the disciplinary proceedings.{{6}}
In Swaziland, the Legal Practitioners Act regulates disciplinary proceedings. It establishes a Disciplinary Tribunal, consisting of a Chairman who is appointed by the Chief Justice and possesses the qualifications required for appointment to the judiciary and two other members selected by the Chairman in consultation with the President of the Council of the Law Society from among the Society’s members.{{7}}
These provisions on the establishment of the Disciplinary Tribunal do not comply with international standards, which prescribe that the primary competence to conduct disciplinary proceedings against lawyers shall lie with “an independent statutory authority consisting mainly of lawyers”.{{8}} While indeed according to the law’s provisions at least two out of three of the Tribunal’s members are lawyers, the independence of the Tribunal cannot be guaranteed in light of the involvement of the Chief Justice in its composition.
If a person has a complaint regarding the professional conduct of a legal practitioner, he or she is to submit the complaint in writing to the Secretary of the Law Society, who will refer the complaint to the Chairman of the Tribunal, for appropriate action.{{9}}
The Disciplinary Tribunal’s procedures are prescribed in regulations made by the Chief Justice, in consultation with the Chairperson of the Tribunal, the Council of the Law Society and the Attorney General.{{10}} Among other procedural rights, the practitioner who allegedly engaged in misconduct is entitled to present written explanations in answer to the complaint during a preliminary investigation.{{11}} If a prima facie case is made against the practitioner under investigation, the Tribunal proceeds to hold a hearing, at which the practitioner (or his or her legal representative) can introduce evidence and present a defence, as well as examine the evidence à charge.{{12}}
If, after due inquiry, the Tribunal decides that a legal professional has been “guilty of professional misconduct” or that it would be contrary to the public interest to allow continued practise because of mental or physical disability:
- the Tribunal can direct the Law Society to make an application to the High Court for an order suspending the practitioner for a period of more than three months or removing him or her from the roll; or,
- the Tribunal can suspend the legal practitioner for a period of less than three months; or, impose a penalty; or, impose “such conditions as it deems fit” to which the practitioner may continue practicing; or,
- the Tribunal can censure the legal practitioner; or, caution and discharge either conditionally or unconditionally.{{13}}
Upon application by the Law Society to the High Court, the Chief Justice (or another judge, in his absence) may for reasonable cause order suspension or removal from the roll or apply one of the lesser sanctions provided for.{{14}} A practitioner whose name was removed from the roll may make an application to have his name restored.{{15}}
Orders or findings of the Tribunal and the penalties it imposes can be appealed to the High Court, except in those cases where the Tribunal directed the Law Society to make an application to the High Court for a suspension of more than three months or removal from the role. Decisions of the High Courts can be appealed to the Court of Appeal.{{16}}
Misconduct, unprofessional or dishonourable or unworthy conduct are defined by Law Society Bye Laws.{{17}}
Reportedly, complaints of lawyers misappropriating their clients’ funds abound in Swaziland.{{18}} However, some in the legal profession with whom the ICJ spoke, voiced doubts about the validity or genuineness of all of these complaints.
In October 2012 Mr Sibusiso Shongwe, then a lawyer and member of the Judicial Service Commission and currently the Minister of Justice and Constitutional Affairs, was alleged to have withheld money belonging to his client and his employer. He reportedly stated that he would “defy” the Disciplinary Tribunal and not appear before it and that the Law Society was out to destroy his character. The Chief Justice, citing failure by the Law Society to provide the accused with further particulars in accordance with his requests, refused to sign the subpoena that must be served on the lawyer before the Tribunal can hear the case.{{19}}
In October 2013, he was summoned to make an appearance before the Council of the Law Society in relation to an inquiry against him into alleged professional misconduct. The summons mentioned: public statements allegedly imputing treasonous behaviour on the part of the Law Society; alleged interference in the operation of the courts; failure to pay statutory subscriptions; and failure and refusal to submit himself to a statutory body after a formal complaint was lodged by a member of the public.{{20}} However, he did not appear before the Council and according to media reports said that the Law Society has no legal right to summon him. The following month Mr Shongwe, who is also facing charges of defrauding The Swazi Observer together with that newspaper’s former Managing Director, was appointed Minister of Justice and Constitutional Affairs.{{21}}
In June 2012, Parliament set up a select committee, mandated to “investigate allegations of unprofessional conduct of lawyers suspected of mismanaging Trust Accounts and enriching themselves through fraudulent means”.{{22}} Upon a legal challenge by the Law Society, the High Court decided that Parliament did not have the power to initiate investigations against lawyers, as there is a self-regulatory mechanism under the Legal Practitioners Act.
[[1]]1. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 26;”]
Codes of professional conduct for lawyers shall be established by the legal profession through its appropriate organs, or by legislation, in accordance with national law and custom and recognized international standards and norms.
[/expand] Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, [expand title=”Article I(m).”]
Codes of professional conduct for lawyers shall be established by the legal profession through its appropriate organs, or by legislation, in accordance with national law and custom and recognized international standards and norms.
[/expand] The International Bar Association (IBA) Standards for the Independence of the Legal Profession [expand title=”(Standard 22)”]
There shall be established rules for the commencement and conduct of disciplinary proceedings that incorporate the rules of natural justice.
[/expand] reserve this task for lawyers’ associations. See Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Article 102.”]
The Bar Association shall establish and enforce in accordance with the law a code of professional conduct of lawyers. Such a code of conduct may also be established by legislation.
[/expand][[1]]
[[2]]2. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 27;”]
Charges or complaints made against lawyers in their professional capacity shall be processed expeditiously and fairly under appropriate procedures. Lawyers shall have the right to a fair hearing, including the right to be assisted by a lawyer of their choice.
[/expand] Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, [expand title=”Article I(n).”]
Charges or complaints made against lawyers in their professional capacity shall be processed expeditiously and fairly under appropriate procedures. Lawyers shall have the right to a fair hearing, including the right to be assisted by a lawyer of their choice
[/expand][[2]]
[[3]]3. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 29;”]
All disciplinary proceedings shall be determined in accordance with the code of professional conduct and other recognized standards and ethics of the legal profession and in the light of these principles.
[/expand] Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, [expand title=”Article I(p).”]
All disciplinary proceedings shall be determined in accordance with the code of professional conduct, other recognized standards and ethics of the legal profession and international standards.
[/expand][[3]]
[[4]]4. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 27″]
Charges or complaints made against lawyers in their professional capacity shall be processed expeditiously and fairly under appropriate procedures. Lawyers shall have the right to a fair hearing, including the right to be assisted by a lawyer of their choice.
[/expand] and [expand title=”29;”]
All disciplinary proceedings shall be determined in accordance with the code of professional conduct and other recognized standards and ethics of the legal profession and in the light of these principles.
/expand] Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, [expand title=”Article I(n)-(o);”]
(n) Charges or complaints made against lawyers in their professional capacity shall be processed expeditiously and fairly under appropriate procedures. Lawyers shall have the right to a fair hearing, including the right to be assisted by a lawyer of their choice.
(o) Disciplinary proceedings against lawyers shall be brought before an impartial disciplinary committee established by the legal profession, before an independent statutory authority, or even before a judicial body, and shall be subject to an independent judicial review
[/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Article 106;”]
Disciplinary proceedings shall be conducted with full observance of the requirements of fair and proper procedure, in the light of the principles expressed in this Declaration.
[/expand] International Bar Association (IBA) Standards for the Independence of the Legal Profession, [expand title=”Standard 22.”]
There shall be established rules for the commencement and conduct of disciplinary proceedings that incorporate the rules of natural justice.
[/expand][[4]]
[[5]]5. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 27;”]
Charges or complaints made against lawyers in their professional capacity shall be processed expeditiously and fairly under appropriate procedures. Lawyers shall have the right to a fair hearing, including the right to be assisted by a lawyer of their choice.
[/expand] Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, [expand title=”Article I(n).”]
Charges or complaints made against lawyers in their professional capacity shall be processed expeditiously and fairly under appropriate procedures. Lawyers shall have the right to a fair hearing, including the right to be assisted by a lawyer of their choice.
[/expand][[5]]
[[6]]6. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 28;”]
Disciplinary proceedings against lawyers shall be brought before an impartial disciplinary committee established by the legal profession, before an independent statutory authority, or before a court, and shall be subject to an independent judicial review.
[/expand] Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, [expand title=”Article I(o);”]
Disciplinary proceedings against lawyers shall be brought before an impartial disciplinary committee established by the legal profession, before an independent statutory authority, or even before a judicial body, and shall be subject to an independent judicial review.
[/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), Article 105 [expand title=”Article 105;”]
An appeal shall lie from a decision of the disciplinary committee to an appropriate appellate body.
[/expand] International Bar Association (IBA) Standards for the Independence of the Legal Profession , [expand title=”Standard 24″]
Disciplinary proceedings shall be conducted in the first instance before a disciplinary committee of the appropriate lawyers’ association. The lawyer shall have the right to appeal from the disciplinary committee to an appropriate and independent appellate body.
[/expand][[6]]
[[7]]7. Legal Practitioners Act, [expand title=”S. 27bis(1).”]
For the purpose of exercising disciplinary control and other powers conferred by this Act, there is hereby established a Disciplinary Tribunal (herein referred to as “the Tribunal”) which shall consist of –
(a) a Chairman, who shall be a person qualified to be appointed a Judge and who shall be appointed by the Chief Justice from time to time;
(b) two other members selected from time to time by the Chairman of the Tribunal in consultation with the President of the Council from among the members of the Law Society.
[/expand][[7]]
[[8]]8. Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), Article 103.[[8]]
[[9]]9. Legal Practitioners Act, [expand title=”S. 27quin.”]
Where any person has a complaint regarding the professional conduct of a legal practitioner, he shall, in writing, submit the complaint to the Secretary of the Law Society who shall refer such complaint to the Chairman of the Tribunal for appropriate action as the Tribunal may determine.
[/expand] Also see Legal Practitioners Act (Disciplinary Proceedings) Regulations, [expand title=”Regulations 6 and 7.”]
6. (1) A complaint shall be made in writing setting out in detail the acts or omissions complained of by the complainant.
(2) Without prejudice to sub-regulation (1), the Chairman of the Tribunal may, by notice which shall be as near as may be in accordance with Form 2 in the Schedule to these Regulations, require a complainant to verify his complaint by affidavit and to provide such further information and documents relating to the complaint as he thinks fit.
7. (1) A complaint shall be lodged with the Secretary who shall transmit it without delay to the Chairman of the Tribunal.
(2) A complaint once transmitted to the Chairman of the Tribunal shall not be withdrawn without leave of the Tribunal.
[/expand] (under Legal Practitioners Act, [expand title=”S. 27bis(2)).”]
the procedure of the Tribunal shall be prescribed under Regulations made by the Chief Justice in consultation with the Chairman of the Tribunal, the Council and the Attorney-General.
[/expand][[9]]
[[10]]10. Legal Practitioners Act, [expand title=”S. 27bis(2).”]
the procedure of the Tribunal shall be prescribed under Regulations made by the Chief Justice in consultation with the Chairman of the Tribunal, the Council and the Attorney-General.
[/expand][[10]]
[[11]]11. Legal Practitioners Act (Disciplinary Proceedings) Regulations, [expand title=”Regulation 8(3).]
The Tribunal shall call upon the practitioner to furnish the Tribunal, within such time as it may direct, with a written explanation in answer to the complaint made against him.
[/expand][[11]]
[[12]]12. Legal Practitioners Act (Disciplinary Proceedings) Regulations, [expand title=”Regulation 12.”]
(1) The Tribunal shall conduct its hearing in private and shall permit the practitioner to be represented by another legal practitioner, if he so wishes.
(2) If either the prosecutor or the practitioner fails to appear at the hearing the Tribunal may, upon proof of service of the notice of hearing, proceed to hear and determine the complaint in his absence.
(3) The Tribunal shall be presided over by the Chairman sitting with two other members.
(4) The Chairman may delegate any of his functions under these Regulations to come to one of the members of the Tribunal.
(5) The prosecutor and the practitioner shall both be afforded the opportunity of adducing evidence relevant to the subject-matter of the inquiry, of cross-examining each other’s witnesses and of making submissions to the Tribunal.
(6) All evidence given at any hearing before the Tribunal shall be on oath or affirmation to be administered by the Chairman of the Tribunal, or with leave of the Tribunal by affidavit evidence:
Provided that where such leave is given, the prosecutor or practitioner, as the case may be, may require the attendance on subpoena of any deponent to any such affidavit for the purpose of giving oral evidence, unless the Tribunal is satisfied that the affidavit relates to formal matters only.
(7) The Tribunal may administer oaths, adjourn the hearing on such terms as to costs as it may think fir, permit amendments to be made and may cause a mechanical or shorthand record to be made of the proceedings of any matter before it.
(8) The Tribunal shall apply the same laws as to the admissibility of evidence and the competency, examination and cross-examination of witnesses as are applied by the High Court in a civil case.
[/expand][[12]]
[[13]]13. Legal Practitioners Act, [expand title=”S. 27ter.”]
(1) If after due inquiry the Tribunal decides that –
(a) a legal practitioner has been guilty of professional misconduct; or
(b) it would be contrary to the public interest to allow a legal practitioner to continue to practise as such because of any mental or physical disability the Tribunal shall take any of the following steps –
(i) direct the Law Society to make an application before the High Court for an order suspending the said legal practitioner from practising as such for a period exceeding three months or removing him from the roll and the Law Society shall comply with any such directive; but no costs shall be awarded against the Law Society unless the High Court is satisfied that the Law Society has acted mala fides or unreasonably in bringing the application;
(ii) suspend the legal practitioner from practising as a legal practitioner for a period not exceeding three months;
(iii) impose on the legal practitioner a penalty not exceeding E1000.00 which amount shall be payable to the Law Society Fidelity Fund established under this Act;
(iv) impose such conditions as it deems fit subject to which the legal practitioner may continue to practice as such;
(v) censure the legal practitioner;
(vi) caution and discharge the legal practitioner either conditionally or unconditionally.
(2) If the subject matter of an allegation of professional misconduct also constitutes or is likely to constitute grounds for criminal proceedings, the Tribunal may postpone its consideration of or decision of the matter until such criminal proceedings have been finalised.
(3) No civil or criminal proceedings against a legal practitioner shall be construed as precluding any disciplinary proceedings under this Act.
(4) The Tribunal shall inform the Attorney-General, the Registrar and the Council within fourteen days of any decision being made under this section.
[/expand][[13]]
[[14]]14. Legal Practitioners Act, [expand title=”S. 27(1).”]
Upon any application by the Law Society, the Chief Justice, or in his absence, a Judge, may, for any reasonable cause shown order the suspension or removal of a legal practitioner from the roll and, in case of disciplinary proceedings for professional misconduct, he may order suspension or removal or such other lesser penalty as is provided for in section 27ter.
[/expand][[14]]
[[15]]15. Legal Practitioners Act, [expand title=”27oct(1).”]
A legal practitioner whose name has been removed from the roll may make application in the same manner as provided in this Act to have his name restored to the roll.
[/expand][[15]]
[[16]]16. Legal Practitioners Act, [expand title=”S. 27quat.”]
Any person who is aggrieved –
(a) by the order or finding of, or penalty imposed by, the Tribunal under this Part other than a directive to the Law Society in terms of section 27ter(1)(i) may, within thirty days after the date of such order, finding or imposition of penalty appeal to the High COurt against the decision of the Tribunal;
(b) by a decision of the High Court may, within thirty days from the date of such decision appeal to the Court of Appeal.
[/expand][[16]]
[[17]]17. Law Society Bye Laws 1992, [expand title=”S. 15(1)-(2),”]
(1) The Council may from time to time publish to its members guidelines in the form of rulings concerning the standards of conduct to which it expects members to adhere.
(2) Unprofessional or dishonourable or unworthy conduct on the part of an attorney member shall, without restricting the generality of those terms, include —
(a) a breach of faith or trust in relation to his client or in relation to any estate of which he is the executor, administrator, trustee, liquidator, receiver or curator;
(b) withholding the payment of trust moneys without lawful excuse;
(c) failing within a reasonable time to respond to an enquiry from a person to whom he owes a duty to reply;
(d) failing within a reasonable time to render his client a detailed statement of account after being called upon so to do;
(e) failing without good cause to wind up a deceased estate without undue delay;
(f) directly or indirectly inviting or advertising or touting for instructions for professional business or doing or permitting in the carrying on of his practice anything which may reasonably be regarded as likely to attract business un-fairly;
(g) carrying on practice at any office which is not under the direct and personal supervision of a duly qualified attorney;
(h) giving or taking allowances in contravention of these Rules;
(i) sharing offices with a person who is not a member;
(j) in any way assisting, allowing or enabling an unqualified person to charge, recover or receive any fee, or derive any remuneration for or in respect of or in connection with the preparation or execution of any documents, or the performance of any professional work which only an attorney, notary or conveyancer, as the case may be, is qualified by law to prepare, sign, execute, attest or perform or in any way conniving at any arrangement, agreement or understanding whatsoever whereby any such fee or remuneration as aforesaid is or shall be charged, recovered or received by any such unqualified person;
(k) failing to pay within a reasonable time the reasonable fees and disbursements of any attorney, notary, conveyancer or advocate in respect of work entrusted to such practitioner by him unless —
(i) at the time of giving initial instructions in regard to such work, he advised such practitioner that he did not hold himself responsible for the payment of such fees and disbursements; or
(ii) payment is withheld for a reason which the Council deems good and sufficient;
(l) claiming in a letter of demand payment of costs or demand or collection commission unless the debtor is under legal obligation to pay such costs or commission;
(m) failure to comply with a determination by the Council in terms of Bye-law 16(d) of a reasonable fee;
(n) any material breach of the provisions of the Act or of these Bye-laws, including the failure to pay an annual subscription to the Society within the period stipulated in Bye-law 19(3).
[/expand] enacted under Legal Practitioners Act, S. 42.[[17]]
[[18]]18. Maxine Langwenya, Swaziland: Justice Sector and Rule of Law. A review by AfriMAP and the Open Society Initiative for Southern Africa, March 2013, p. 106-107.[[18]]
[[19]]19. Maxine Langwenya, Swaziland: Justice Sector and Rule of Law. A review by AfriMAP and the Open Society Initiative for Southern Africa (March 2013), p. 106.[[19]]
[[20]]20. See, among others, Swazi Observer, Lawyer Sibusiso Shongwe Summoned (10 October 2013). (Last accessed 16 June 2014).[[20]]
[[21]]21. See, among others, Times of Swaziland, Minister of Justice faces fraud charges (9 November 2013). (Last accessed 16 June 2014).[[21]]
[[22]]22. The Law Society of Swaziland v The Speaker of the House of Assembly & 2 others (1145/12) [2012] SZHC171 (9 August 2012), para. 4.[[22]]