LPC v Swartz

Disbarment: South African Legal Practice Council v Swartz [2025] ZAWCHC 60

This matter was an application in which the South African Legal Practice Council (“LPC”) sought an order that the respondent be struck, alternatively suspended, from the roll of legal practitioners of the Western Cape Division of the High Court of South Africa in terms of section 40(3)(a)(iv) read with section 44(1) of the Legal Practice Act (“the LPA”).¹

The respondent, Ms Lynn Swartz (“Ms Swartz”), an attorney, was instructed by the complainant, Ms LD, in September 2010 to institute a delictual claim against the South African Police Services (SAPS) and the Minister of Police for damages arising from a police raid on Ms LD’s property in May 2010. Ms Swartz failed to issue summons timeously, resulting in the claim becoming prescribed. In an attempt to conceal her negligence, Ms Swartz falsely informed Ms LD in September 2018 that the matter had been settled for R350,000. She then proceeded to pay the complainant a total of R398,000 in instalments from her own personal funds. Despite repeated requests, Ms Swartz failed to provide Ms LD with any documentation relating to the supposed settlement. Consequently, Ms LD subsequently lodged a complaint with the LPC.

The key issues before the court were as follows:

Whether the Disciplinary Committee’s decision was binding on the LPC.
Whether Ms Swartz remained fit and proper to practise law, given her misconduct.
Whether Ms Swartz should be struck from the roll or suspended, if found not fit and proper.

The LPC argued that a legal practitioner had a duty to represent clients properly and honestly and to act in their best interests, which the respondent failed to do. They contended that the Ms Swartz’s dishonest, unethical, and unprofessional conduct demonstrated a lack of integrity, judgment, and insight, thereby rendering her not a fit and proper person to practice. The LPC thus submitted that Ms Swartz’s conduct was demonstrably prejudicial to Ms LD, the public, and the profession, warranting her immediate striking from the roll or, alternatively, suspension.

In response, Ms Swartz admitted the misconduct but submitted that it did not warrant a striking off from the roll. Her counsel argued on her behalf that the LPC was bound by the decision of the Disciplinary Committee (DC), which had recommended a suspended suspension, as per section 40(8) of the LPA. They pointed out that the respondent admitted wrongdoing, did not delay proceedings, and had paid all imposed fines. Furthermore, they suggested that the case reflected a moral lapse and implored the court to order a suspended suspension.

The court held that section 40(8) of the LPA must be interpreted within the broader context of the Act. Relying on section 6(1)(a)(x)(bb) of the LPA, which allows the LPC to vary or set aside decisions made under delegation, the court concluded that the LPC was not bound by the DC’s decision. The LPC, as the regulatory body, has the authority to approach the court if it believes a subcommittee’s decision compromises the integrity of the profession or is not in the public interest.

The court applied the three-stage inquiry for determining whether a legal practitioner should be struck off. While the first stage (proving the offending conduct) was met, the court considered the second stage (whether the person is fit and proper) and the third stage (strike-off or suspension). The court acknowledged the respondent’s dishonesty in concealing the prescription but considered several mitigating factors such as her frankness with the LPC, the fact that she paid the complainant more than the supposed settlement from her own funds, her fear of the complainant due to perceived threats, her youth and inexperience at the time of the incident, and the absence of prior complaints in the last ten years. The court found that while the conduct was dishonest, it did not necessarily establish that the respondent was a danger to the public or lacked the fundamental integrity to remain in the profession.

The court thus ordered that the respondent be suspended from practice as a legal practitioner for a period of three years, which suspension is wholly suspended for a period of three years, antedated to 1 April 2023, subject to the following conditions:

The respondent does not commit any further acts of misconduct involving dishonesty or gross negligence.
The respondent remains registered with Prescription Alert.²

The court further ordered that in the event of a breach of these conditions, the LPC could approach the court for further relief.

Author’s opinion

I’m always pleased when I come across cases where lawyers who make genuine mistakes are spared the lifelong penalty of disbarment. As with any aspect of life, sometimes a lapse in judgement occurs, and for it to leave a permanent mark on a person’s character, identity, and career has always struck me as a disproportionate response.

Granted, there are far too many incidents involving rogue or corrupt lawyers who take advantage of trusting clients or mislead the courts in which they practise. Take, for instance, the case of Dumisa Shabangu (“Shabangu”), whose striking off the roll was confirmed in South African Legal Practice Council v Shabangu.³ The LPC received several complaints against Shabangu, with almost 20 complainants reporting his failure to complete property transfers after funds were paid into his trust account. Investigations revealed significant financial irregularities. For example, while the trust account reflected a credit balance of R1,187,889.84, it had received unexplained deposits totalling R10,645,000.00 between April 2023 and March 2024, suggesting a trust deficit of R9,457,110.16. A case like this undoubtedly warrants striking off the roll, as it constitutes gross misconduct of the worst kind.

In contrast, Ms Swartz had an incident-free career until Ms LD walked into her life. Should she have been honest about the prescription? Yes. Would she have handled the matter differently in hindsight? Certainly. Did the LPC consider the incident holistically? In my view, no. They approached it narrowly, as is unfortunately often the case, and pursued her disbarment on the basis that, from that single incident, she was no longer “fit and proper”.

For those unfamiliar with the term, “fit and proper” is commonly used in the legal profession to mean that a person must demonstrate integrity, reliability, and honesty. These are the traits that underpin the public’s trust in legal practitioners. Although the burden lies with the attorney to prove they are fit and proper to enter or remain in the profession, the decision is ultimately a discretionary value judgment by the court.

When all is said and done, it is up to the LPC to decide whether to institute disciplinary proceedings and to launch a court application to have an attorney struck off the roll. Once the matter is before a court, it falls to that court to exercise its discretion, balancing the seriousness of the misconduct against the potential for rehabilitation and considering the specific circumstances of the case in order to reach a just outcome.

You can read the judgement from the Swatz case here, and the one for the Shabangu case here.

Written by Theo Tembo