Leet8411 Mo

IIE Module Outline LEET8411
Legal Ethics
LEET8411
MODULE OUTLINE 2024
(First Edition: 2021)
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© The Independent Institute of Education (Pty) Ltd 2024 Page 1 of 38

Table of Contents
Introduction ............................................................................................................................................ 3
Using this Module Outline ....................................................................................................................... 4
This Module on Learn .............................................................................................................................. 5
Icons Used on Learn ................................................................................................................................ 6
Module Resources ................................................................................................................................... 7
Module Purpose .................................................................................................................................... 11
Module Outcomes................................................................................................................................. 11
Assessments .......................................................................................................................................... 12
Module Pacer ........................................................................................................................................ 15
Glossary of Key Terms for this Module....................................................... Error! Bookmark not defined.

Introduction
Welcome to the Legal Ethics module. We did not want to present a ‘normal’ ethics course
where you simply learn about the theory of ethics in a silo. What we endeavoured to create is
a module that looks at legal practice broadly and the ways in which ethics fit in. The module
commences with the history of the profession. It is important for you, as prospective legal
practitioners, to be aware of the social and political conditions that shaped the profession you
will inherit, and for which you bear the responsibility to fully transform. We also chose to give
you an overview of theories that inform ethics, ethical decision-making and the ethical
perspectives that contribute to making the legal profession what it currently is. The message
that we wish to convey is that professional conduct is ethical conduct. We did not want to
present a course that provides the student with ways to avoid being struck off. We
endeavoured rather to present a course that distinguishes between meeting the basic legal
requirements for professional conduct and doing what is morally right.1
The module would be incomplete if we did not highlight ethics in the public service, focusing
on the prosecuting and judicial services. A number of public officials holding office in the
National Prosecuting Authority have faced very-publicised dismissals. While this is indeed a sad
and regrettable situation, these cases have “…placed the questions of what accountability and
independence mean in a constitutional democracy in the public domain for debate.”2 We look
at social justice and the role of legal practitioners in transforming South Africa, giving life to the
transformative constitutional mandate. The legal pioneers that went before us were crucial in
challenging the previous political dispensation and laying the foundations for a society based
on human dignity, equality and freedom. Their fight against injustice has been termed “law-
fare” – that is ‘waging war using the law’, the courtroom becoming the battlefield.3 Finally, the
module begins with the transformation of the legal profession and ends with a closer look at
gender transformation in particular. Our history indicates that women were not considered to
be ‘persons’ for the purposes of admission to the profession. We have come a long way but
we still have a long way to go.
We trust that the module stretches your imagination and urges you to become both a
contributor and participator in the transformation of the legal profession in South Africa.4
1
Van Zyl and Visser J "Legal Ethics, Rules of Conduct and the Moral Compass - Considerations from a Law Student's
Perspective" PER / PELJ 2016(19) p.3
2
Truth and Reconciliation Final Report, Volume 4, Chapter 4 Institutional Hearing: The Legal Community, para 46.
3
The phrase “law-fare” is borrowed from Willie Hofmeyr, an anti-apartheid activist, a lawyer and now retired public
servant. Willie Hofmeyr is the former head of the Asset Forfeiture Unit and the Special Investigating Unit. He was banned in
1977 for his involvement in the ‘black’ trade union movement and later banned and detained for his involvement in the
UDF. He won several court cases against the state when he challenged the banning of the UDF meeting, and also his
conditions of detention in prison.
4
Maisel, Mahomed & Jain, Clinical Legal Education's Contribution to Building Constitutionalism and Democracy in South
Africa: Past, Present, and Future, 60 New York Law School Law Review 433 (2016) pp.447-447

Using this Module Outline

This module outline has been developed to support your learning. Please note that the content
of this module is on Learn as well as in the prescribed material. You will not succeed in this
module if you focus on this document alone.
• This document does not reflect all the content on Learn, the links to different resources,
nor the specific instructions for the group and individual activities.
• Your lecturer will decide when activities are available/open for submission and when
these submissions or contributions are due. Ensure that you take note of
announcements made during lectures and/or posted within Learn in this regard.

This Module on Learn

Learn is an online space, designed to support and maximise your learning in an active manner.
Its main purpose is to guide and pace you through the module. In addition to the information
provided in this document, you will find the following when you access Learn:
• A list of prescribed material;

• A variety of additional online resources (articles, videos, audio, interactive graphics, etc.)
in each learning unit that will further help to explain theoretical concepts;
• Critical questions to guide you through the module’s objectives;
• Collaborative and individual activities (all of which are gradable) with time-on-task
estimates to assist you in managing your time around these;
• Revision questions, or references to revision questions, after each learning unit.
Kindly note:
• Unless you are completing this as a distance module, Learn does not replace your
contact time with your lecturers and/or tutors.
• LEET8411 is a Learn module, and as such, you are required to engage extensively
with the content on the Learn platform. Effective use of this tool will provide you
with opportunities to discuss, debate, and consolidate your understanding of the
content presented in this module.
• You are expected to work through the learning units on Learn in your own time –
especially before class. Any contact sessions will therefore be used to raise and
address any questions or interesting points with your lecturer, and not to cover
every aspect of this module.
• Your lecturer will communicate submission dates for specific activities in class and/or
on Learn.

Icons Used on Learn

The following icons are used in all your modules on Learn:
Icon Description
A list of what you should be able to do after working through the learning unit.
Specific references to sections in the prescribed work.
Questions to help you recognise or think about theoretical concepts to be covered.
Sections where you get to grapple with the content/theory. This is mainly presented
in the form of questions which focus your attention and are aimed at helping you to
understand the content better. You will be presented with online resources to work
through (in addition to the textbook or manual references) and find some of the
answers to the questions posed.
Opportunities to make connections between different chunks of theory in the

module or to real life.
Real life or world of work information or examples of application of theory, using

online resources for self-exploration.
You need to log onto Learn to:

• Access online resources such as articles, interactive graphics, explanations,
video clips, etc. which will assist you in mastering the content; and
• View instructions and submit or post your contributions to individual or group
activities which are managed and tracked on Learn.
REMEMBER:
You need to log onto Learn to:

• Access online resources such as articles, interactive graphics, explanations, video clips, etc. which will assist
you in mastering the content; and
• View instructions and submit or post your contributions to individual or group activities which are managed
and tracked on Learn.

Module Resources
Prescribed Mahomed, SH et al. Clinical Law in South Africa. 3rd ed 2016
Material (PM) Prescribed reading: Summary of J Michael Kelly’s four levels of ethical decision
for this making
Module
Learning Unit 1
Bonnin D, Striking a Regulatory Bargain The Legal Profession, Associations and

the State in South Africa, Professions and Professionalism Vol 9 No. 3, 2019
Madlalate R, Legal Education in South Africa: Racialized Globalizations, Crises, and

Contestations
https://doi.org/10.1093/oso/9780197632314.003.0004
Perez A ‘Morality v ethics v law’
https://www.linkedin.com/pulse/ethics-vs-morals-law-dr-arturo-perez/
van der Westhuizen A Few Reflections…African Human Rights Journal 2008

p.252-254
Wildenboer Origins of the divisions in the legal profession pp.219 -222
Wacks, R. (1988). Judges and Injustice. Bulletin of Australian Society of Legal

Philosophy [online]
https://www.austlii.edu.au/au/journals/AUSocLegPhilB/1988/14.pdf [Accessed 14
December 2023].
TRC Final Report, Volume 4, pages 96-

https://www.justice.gov.za/trc/report/finalreport/Volume%204.pdf
Learning Unit 2
Feldman H I Beyond the Model Rules: The Place of Examples in Legal Ethics
Georgetown University Law Center (1999)
Geduld A, Decoloniality, ubuntu and human rights in South Africa: a bridge to

social justice Librairie Africaine d’Etudes Juridiques 7 (2020)
https://www.nomos-elibrary.de/10.5771/2363-6262-2020-3-
381.pdf?download_full_pdf=1

Peggy Maisel, Shaheda Mahomed & Meetali Jain, Clinical Legal Education's
Contribution to Building Constitutionalism and Democracy in
South Africa: Past, Present, and Future, 60 New York Law School Law Review
433 (2016).
Metz, T “Ubuntu as moral theory and human rights” in South Africa African
Human Rights Law Journal Vol 11 2011
Prescribed reading: Summary of J Michael Kelly’s four levels of ethics
Van Zyl CH IV and Visser J "Legal Ethics, Rules of Conduct and the Moral
Compass - Considerations from a Law Student's Perspective" PER / PELJ
2016(19)
Wille’s Principles of South Africa, para viii “legal reasoning” pp. 22-32
Slabbert M “The requirement of being a "fit and proper" person for the legal
profession” PER / PELJ 2011(14)4
Learning unit 3
Klaaren, Jonathan, South Africa: A Profession in Transformation (March 19,

2020). in Lawyers in 21st-Century Societies: Vol. 1: National Reports, ed. Richard
L. Abel et al. (Bloomsbury Academic, 2020), 535–46., Available at SSRN:
https://ssrn.com/abstract=3375928 or
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3375928
Madlalate R, Legal Education in South Africa: Racialized Globalizations, Crises, and

Contestations
https://doi.org/10.1093/oso/9780197632314.003.0004
Learning 4
Klaaren (2020)
Sunday Times: Judge hits back at Road Accident Fund attorneys who accused
him of bias, https://www.timeslive.co.za/news/south-africa/2020-05-06-judge-
hits-back-at-road-accident-fund-attorneys-who-accused-him-of-bias/
Legal Practice Council: https://lpc.org.za/members-of-the-public/particulars-of-

disciplinary-hearings/

Learning 5
Mokgoro Commission Report (abridged version)
http://www.thepresidency.gov.za/sites/default/files/Section%2012%286%29%2
0Enquiry%20report%20-%20abridged%20version.pdf
Prosecution Policy (2013)

https://www.opensecrets.org.za/wp-content/uploads/2022/06/Zondo-
Commission_NPA-Prosecution-Policy.pdf
Judicial Conduct Tribunal

Harms ‘Judicial ethics and complaints procedures’ The Advocate (2006)
Ginwala Commission Report

https://www.justice.gov.za/commissions/2008_ginwala.pdf
Report of the Judicial Conduct Tribunal re Judge Motata

http://www.judgesmatter.co.za/wp-content/uploads/2018/04/Judge-Motata-
Tribunal-Report-April-2018.pdf
“High Court judge granted special leave for Facebook comments” – re Judge
Mabel Jansen – De Rebus, June 2016 pp. 16-18
http://www.derebus.org.za/wp-content/uploads/2016/05/DR_June_16.pdf
Learning Unit 6
McQuoid-Mason (2000)
http://clarkcunningham.org/LegalEd/SouthAfrica-MM-Fordham.pdf
Budlender, Marcus and Ferreira Public-interest-litigation-and-social-change-in-

South-Africa
https://www.atlanticphilanthropies.org/wp-content/uploads/2015/12/Public-
interest-litigation-and-social-change-in-South-Africa.pdf
Learning Unit 7
Chitapi, R. 2015. Women in the legal profession in South Africa: traversing the
tensions from the bar to the bench. University of Cape Town. Chapter 2
LPC’s Sexual Harassment Policy

https://drive.google.com/file/d/11UepfBj5-ThYvy-6dWa8cFGkb75djD0Z/edit
Manyathi-Jele “Project to address gender transformation of the legal

profession launched” De Rebus, September 2015:8 [2015] DEREBUS 152

Recommended Please note that a number of additional resources and links to resources are
Readings, provided throughout this module on the Learn platform. You are encouraged to
Digital, and engage with these as they will assist you in mastering the various objectives of
Web this module. They may also be useful resources for completing any assignments.
You will not, however, be assessed under examination conditions on any
Resources
additional or recommended reading material.
Godfrey, S. (2009). The Legal Profession: Transformation and Skills. South

African Law Journal, 126(1), pp. 91-123.
Amy Gordan and David Bruce TRANSFORMATION AND THE INDEPENDENCE OF

THE JUDICIARY IN SOUTH AFRICA CSRV
https://www.csvr.org.za/docs/transition/3.pdf
Klaaren J, South Africa: A Profession in Transformation in Lawyers in 21st-

Century Societies: Vol. 1: National Reports, ed. Richard L. Abel et al.
(Bloomsbury Academic, 2020), 535–46.
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3375928
Manyathi-Jele, N. (2015). National Forum Meeting on 31 May 2015. De Rebus

[online] https://www.lssa.org.za/national-forum-meeting-on-31-may-2015/>
[Accessed 14 December 2023].
Sedutla, M. (2017). Future of the legal profession discussed at BLA NGM. De

Rebus [online] https://www.derebus.org.za/future-legal-profession-discussed-
bla-ngm/ [Accessed 14 December 2023].
Whitear Nel and Freeman historical context of legal profession p.235
Prescribed All case cited in Chapter 3 of Mahomed et al

cases
Corruption Watch NPC and Others v President of the Republic of South Africa
and Others [2018] ZACC
DA v The ANDPP (2012)

Zuma v DA (836/2013) [2014] ZASCA
Mashengoane 2014 (2) SACR 623 (GP)
Jiba & another v The General Council of the Bar of South Africa and Mrwebi v
The General Council of the Bar of South Africa (141/17 and 180/17) [2018]
ZASCA
Democratic Alliance v the President of the Republic of South Africa 2013(1) SA

248 (CC ) para 26
Freedom under Law (FUL) v NDPP 2018

Module You will find an overview of this module on Learn under the Module
Overview Information link in the Course Menu.
Assessments Find more information on this module’s assessments in this document
and on the Student Portal.
Module Purpose
The purpose of this module is therefore to instil the importance of ethical decision-making
by lawyers. This module further aims to highlight the importance of making ethical
judgements and retaining high ethical standards.
Module Outcomes
Critically evaluate the values enshrined in the Constitution juxtaposed with the
MO1
responsibility on South African lawyers to develop these values.
Critically appraise the role of and the relationship between lawyers, justice and
MO2
the legal system.
MO3 Critically evaluate and resolve contemporary legal ethical dilemmas.

Assessments
Integrated Curriculum Engagement (ICE)
Minimum number of ICE activities to complete 4
Weighting towards the final module mark 10%
Formatives Assignment Test

Weighting 25% 30%
Duration Approximately 10 hours 1 hour
Write/Submit after Learning unit 2 Learning unit 3
Learning Units covered LU1 and 2 LU2 and 3
Resources required
Summative Examination
Weighting 35%
Duration 2 hours
Total marks 120
Open/Closed book Closed book
Resources required None
Learning Units covered All

Assessment Preparation Guidelines

Format of the Assessment Preparation Hints
Test
The test for this module will • Ensure that you work through all the relevant
assess your understanding activities, exercises and revision questions on Learn
of Learning Unit 2 and 3 of and in your textbook.
this module, and will • Brainstorm possible questions based on the learning
include a series of short outcomes and objectives provided. Then complete
and medium-length these as practise-tests.
questions, as well as one • During both your preparation for the test and during
longer question. You will be the test itself, pay attention to the instruction words
expected to apply, as well (like list, apply, describe, etc.) and to the mark
as recall information as per allocations of each question to ensure that you are
your objectives for these able to provide the correct depth and detail in your
learning units. answers.
• Make sure that you have mastered the objectives in
Learning Units 2 and 3.
Assignment
The assignment will assess • Read through the prescribed chapters and content for
your ability integrate and Learning Units 1 and 2, and ensure that you have
apply the content in engaged in close reading of the indicated poem before
Learning Units 1 and 2 of you proceed with your written analysis.
this module to a given • Remember to analyse all elements required, and
poem. ensure that your assignment is proofread and polished
for style, language and syntax.
• Improve the quality of your assignment by using the
provided rubric and addressing any areas of concern
prior to submitting it for marking.

Examination
The examination will assess • Make sure that you practise answering the sample
all learning units in this questions so that you become familiar with the kinds
module, and will include of questions likely to appear in the examination itself.
both theory and
• Ensure that you work through all the activities,
application-type questions.
exercises and revision questions on Learn and in your
You will be expected to textbook. You must have completed close readings of
respond to short, theory- your prescribed material to ensure that you have
based questions, as well as prepared adequately for your examination for this
to essay-type questions. module.
• Pay close attention to the instruction words (like list,
apply, describe, analyse, etc.) and to the mark
allocations of each question to ensure that you
provide the correct depth and detail in your answers.
• Make sure that you are comfortable in responding to
all the objectives for all learning units.
• Brainstorm possible questions based on the learning
outcomes and objectives provided.

Module Pacer
Code Programme Contact Sessions Credits
LEET8411 Bachelor of Laws (LAW4) 36 12
Learning Unit 1 History of the Legal Profession in South Africa
Overview:
In 1994, South Africa embraced a constitutional democracy. However, this did not mean that
all of South Africa’s problems were resolved. As a result, South Africa embarked on a journey
of transformation in order to address the injustices and imbalances inherited from the
apartheid regime. Even now, this transformation process is underway and perhaps will be for
a while still.
In this learning unit, we will look at the history of the legal profession in South Africa by
assessing the pre-democratic legal profession in South Africa, evaluating the transformation
of the legal profession, and investigating the regulation of the legal profession in terms of the
Legal Practice Act 28 of 2014.
If you are a contact student, you will likely spend 6 sessions on this learning unit.
Summarise the readings assigned for this learning unit and use both the learning outcomes and
the active learning questions on Learn as a guide to possible questions that may be set on the
content of the readings. Create a table setting the various philosophers (Hart, Hobbes,
Bentham, etc), their views and how these approaches to ethics, law, morality and justice
impacted how the law was interpreted and applied.

Learning Unit 1: History of Legal Profession in South Africa

Sessions: Theme 1: The Pre-democratic Legal Prescribed Material (PM)
1-5 Profession in South Africa
Related LO1: Provide an overview of the legal PM:
Outcomes: profession during: Mahomed et al para 2.3.3;
MO001 • the South African Colony 2.4.3; 2.6
MO002 • The Union of South Africa
Madlalate R, Legal Education in
• The Republic of South Africa
South Africa: Racialized
under apartheid Globalizations, Crises, and
LO2: Assess the role played by lawyers Contestations: URL
https://doi.org/10.1093/oso/9780197632314.003.0004
and the judiciary in support of
apartheid with reference to: TRC Report volume 4 p.96-111
• TRC report
• Wacks’ Judges and Justice Wack, R (1988) Judges and
• van der Westhuizen’s A few Justice
reflections
LO3: Analyse the role played by lawyers van der Westhuizen p.252-254
and the judiciary in opposition to
apartheid with reference to:
• TRC report Wildenboer Origins of the
divisions in the legal profession
• Wacks’ Judges and Justice
pp.219 -222
• van der Westhuizen’s A few
reflections
• Lawyers for Human Rights
• Legal Resources Centre
• Black Lawyers Association Legal
Education Centre
• University Law Clinics
LO4: Discuss the politicisation of legal
professional associations prior to
1994 with reference to:
• Law Society of South Africa
• National Association of
Democratic Lawyers
• Black Lawyers Association

Theme 2: Transformation of the Legal PM:

Profession
LO5: Critically evaluate the
Klaaren (2020) pp.535-536
transformational objects expressed
by:
• Vision 2000
• Legal Services Charter
• Recognition of Foreign Legal
Qualifications and Practice Act,
1993
• National Forum of the Legal
Profession
LO6: Critically evaluate the obstacles to
transformation as outlined by
Centre for Applied Legal Studies
(2014)
Theme 3: Regulation of the Profession PM1:
LO7: Apply the provisions of the Legal Mahomed et al para 2.7
Practice Act 2014 with reference Bonnin D, Striking a
Regulatory Bargain
to:
• a legislative framework for
Legal Practice Act 2014
transforming and restructuring
the profession in line with LPC Rules s95
constitutional imperatives
• Independence and demographic Klaaren (2020) pp. 541-543
diversity
• Legal Practice Council
• Regulation of the affairs of legal
practitioners through a single
regulatory body
• Legal Services Ombud
• SA Legal Practice Council Rules
in terms of section 95 of the LPA

Learning Unit 2 Legal Ethics
Overview:
Legal ethics play an important role within the legal profession. For the most part, it ensures
that legal practitioners fulfil the requirement of being a fit and proper person. This, in turn,
protects the public from those legal practitioners who are both unethical and
unprofessional.
In this learning unit, we will look at legal ethics by considering the concepts relating to ethical
decision making, evaluating legal ethics by specifically contrasting legal responsibility,
professionalism and professional responsibility, solving a legal ethical dilemma with
reference to a set of facts, explaining legal reasoning and assessing the role of legal
education.

Learning Unit 2: Theme Breakdown

Sessions: Theme 1: Concepts Relating to Ethical Prescribed Material (PM)
6-10 Decision-making
Related LO1: Contrast law, morality and ethics, PM:
Outcomes: including legal professional ethics NB: this theme will require
MO001 LO2: Distinguish between legality and additional research beyond the
MO003 legitimacy and law and justice prescribed materials provided.
LO3: Evaluate the concepts of
RE: LO2 also consider the
independence, impartiality as
different forms of justice:
standards for judicial conduct corrective, distributive, social,
LO4: Outline Hart’s views on law and procedural and substantive
justice
LO5: Provide an overview of the various Metz, T Ubuntu as moral theory
categories of legal ethics as outlined and human rights in South Africa
by Kelly African Human Rights Law
LO6: Contrast Kelly, Burns and Henriss- Journal Vol 11 2011
Anderson’s views on legal ethics.
Geduld A, Decoloniality, ubuntu and
LO7: Contrast Bentham’s utilitarian
human rights in South Africa: a
theory, Kant’s deontology, bridge to social justice Librairie
Aristotle’s virtue ethics Africaine d’Etudes Juridiques 7
LO8: Assess the philosophy of Ubuntu as (2020)
the basis for ethical decision-making. https://www.nomos-
elibrary.de/10.5771/2363-6262-
2020-3-
381.pdf?download_full_pdf=1
Prescribed reading: Summary of J

Michael Kelly’s four levels of
ethics
Burns, Susan "Teaching Legal

Ethics" [1993] LegEdRev 6; (1993)
4(1) Legal Education Review 141
http://classic.austlii.edu.au/au/jo
urnals/LegEdRev/1993/6.html
H. L. A. Hart “Positivism and the

Separation of Law and Morals”
Vol. 71, No. 4 (Feb.,
1958), Harvard Law Review, pp.
593-629

http://www.jstor.org/stable/1338
225
Henriss-Anderssen D Teaching
Legal Ethics to First Year Law
Students (2002) Legal Education
Review Vol 13
https://ler.scholasticahq.com/arti
cle/6148-teaching-legal-ethics-to-
first-year-law-students.pdf
Theme 2: Legal Ethics PM:

LO9: Contrast legal responsibility, Mahomed et al 3.2
professionalism and professional Van Zyl CH IV and Visser J "Legal
Ethics, Rules of Conduct and the
responsibility
Moral Compass - Considerations
LO10: Solve a legal ethical dilemma with
from a Law Student's
reference to a set of facts.
Perspective" PER / PELJ 2016(19)
–
Theme 3: Legal Reasoning PM:
LO11: Explain what is meant by legal
reasoning Wille’s Principles of South Africa,
para viii “legal reasoning” pp. 22-
LO12: Briefly discuss the two ways of
32
reasoning about the law.
Theme 4: The Role of Legal Education PM: Peggy Maisel, Shaheda

LO13: Provide an overview of legal Mahomed, Meetali Jain, “Clinical
Legal Education’s Contribution
education prior to 1973 to Building Constitutionalism and
LO14: Assess the post-apartheid Democracy in South Africa: Past,
developments in legal education Present, and Future,”
LO15: Evaluate the role of tertiary (2015-2016). N.Y.L. SCH. L. REV.
https://core.ac.uk/download/pdf/23
institutions in 7003835.pdf
• realising the ideals of
transformative constitutionalism
• entrenching ethical values
LO16: Discuss the importance and impact
of clinical legal education

Learning Unit 3 Professional Conduct
Overview:
The Legal Practice Act 28 of 2014 (the LPA) was signed into law on 22 September 2014. The
LPA seeks to regulate the legal profession in the hope of creating accountable, efficient and
independent legal practitioners. This has resulted in the creation of the Legal Practice
Council (the LPC). The South African Legal Practice Council Rules must be observed by all
legal practitioners. Failure to do so may result in serious legal sanctions.
In this learning unit, we will look at professional conduct as ethical conduct, by analysing
professional practice and professional conduct, examining the Legal Practice Council and the
Rules of Professional Conduct, and contemplating the enforcement of discipline

Learning Unit 3: Professional Conduct as Ethical Conduct

Sessions: Theme 1: Professional Practice Prescribed Material (PM)
11-16
Related LO1: Distinguish the meaning of ‘legal PM:
Outcomes: practitioner’ before and after the Mahomed et al 2.5.2; 2.7.2.1;
MO001 Legal Practice Act 2014. Prince v President, Law Society of
MO002 LO2: Explain the application for admission the Cape of Good Hope 2002(2)
and enrolment as a legal practitioner SA 794 (CC)
MO003
including:
• Sections 24 and 26 of the Legal Admission Oath: Legal
Practice Act – Application for Practitioners (Find on VC Learn)
Admission
• The Legal Practice Council Rules ‐
Rule 17 Application for admission
and enrolment as legal
practitioners [sections 95(1)(k)
and (t)read with sections 24(2)(d),
30(1)(a) and 30(b)(iii)
• Admission Oath
LO3: Discuss the meaning and application
for right of appearance
Theme 2: Legal Practice Council PM:
LO4: Assess the role of the Legal Practice Mahomed et al 2.7.2.3
Council with reference to
• Objectives of the Legal Practice Legal Practice Act 2014
Council
• Powers of the Legal Practice
Council
Theme 3: Concepts relating to Professional PM:
Conduct Mahomed et al para 2.2 pp.9-10
LO5: Explain the concept of professional and Chapter 3 and case law
referred to in this chapter.
conduct with reference to:
Chapter 7 para 7.6.4 and 7.9
• what it is
p.134
• what it does
• the intended purpose What are accounting records and
LO6: Distinguish between statutory who is responsible: URL
misconduct, unprescribed https://www.derebus.org.za/who
misconduct and professional -is-responsible-for-accounting-
negligence. records/#:~:text=The%20Attorne
LO7: Explain the meaning of “good ys%20Act%20requires%20under,
standing” in relation to a legal
savings%20or%20other%20intere
practitioner
st%2Dbearing

LO8: Apply, with reference to a set of CH VAN ZYL IV & J VISSER PER /
facts, the characteristics of the fit PELJ 2016 (19)
and proper person with reference to:
• upholding the law Legal Practitioners’ Fidelity Fund:
URL
• not be dishonest
https://www.fidfund.co.za/#:~:te
• not assisting a client in breaking
xt=The%20primary%20purpose%
the law
20of%20the,executor%20or%20a
• personal life of the practitioner dministrator%20in%20a
• golden rule
LO9: Discuss the purpose of the Legal Code of Conduct:
practitioners Fidelity Fund https://lpc.org.za/legal-
practitioners/code-of-conduct/

Learning Unit 4 Applied Professional Conduct
Overview:
It is not enough to simply be aware of the rules of conduct that regulate a legal practitioner’s
professional conduct. Legal practitioners must abide by the rules of conduct in every aspect
of their legal career. Serious legal sanctions may result from failing to do so.
In this learning unit, we will look at the application of professional conduct as ethical
conduct, by analysing the various sources of ethics and conduct rules, applying the rules of
conduct with regard to the relationship between the legal practitioner and the client, other
legal practitioners, advocates, the court, the state and the Legal Practice Council,
contemplating the enforcement of discipline, and assessing specific issues relating to
discipline.

Learning Unit 4: Applied Professional Conduct

Sessions: Theme 1: Rules of Professional Conduct Prescribed Material
17- 21 (PM)
Related LO1: Discuss the following sources of ethics and Mahomed et al Chapter 3
Outcomes conduct rules
: • The Legal Practice Act, 2014 and the The Legal Practice Act,
MO001 regulations thereunder; 2014 and the regulations
MO002 • The State Attorney Act, 1957
NB: the following sources
MO003 • Contingency Fees Act, 1997
contain offensive
• Rules Board for Court of Law Act, 1985
language that may be
• Legal Aid South Africa Act, 2014 disturbing to some
• The common law viewers.
• Decided cases
• Practice directives YouTube: Advocate
LO2: Apply the rules of conduct in with reference clashes with judge at
to the relationships with the client in respect court hearing,
of: https://www.youtube.com/
watch?v=KGMUXeHKMSs&a
• Accepting instructions and engagement
b_channel=eNCA
• mandate;
• professional dominance and informed
consent High Court session video
• mediation is contained in this
• settlements Sunday Time Article:
• conflict of interest WATCH | Attorney on
• confidentiality; privilege and the why he hurled 16 F-
protection of personal information bombs at Gauteng judge,
https://www.timeslive.co.za
• without prejudice
/news/south-africa/2020-
• duty of care and skill 09-16-watch-attorney-on-
• overcharging why-he-hurled-16-f-bombs-
LO3: Apply the rules of conduct in with reference at-gauteng-judge/
to the relationships between the legal
practitioner and other legal practitioners Sunday Times: Judge
rebukes East London
with respect to:
attorney for 'extreme
• general duty of respect and fairness
greed'.
• position of trust https://www.timeslive.co.za
• seniority /news/south-africa/2020-
• rules of etiquette 09-10-judge-rebukes-east-
• witnesses london-attorney-for-
extreme-greed/

LO4: Apply the rules of conduct in with reference Sunday Times: Judge hits
to the relationships between the legal back at Road Accident
practitioner and advocates: Fund attorneys who
• referral rule accused him of bias.
https://www.timeslive.co.za
• exclusivity of work
/news/south-africa/2020-
• briefing 05-06-judge-hits-back-at-
• control over the case road-accident-fund-
• liability for fees attorneys-who-accused-
LO5: Apply the rules of conduct in with reference him-of-bias/
to the relationships between the legal

Legal Practice Council:
practitioner and the court with reference to:
https://lpc.org.za/members-
• Forms of address of-the-public/particulars-of-
• Robing disciplinary-hearings/
• Relationship of trust [Accessed 14 December
• Behaviour in court 2023]
• contempt of court
• bringing the court into disrepute
• defending the guilty
• abusing the rules of court
• relationship with court officials
LO6: Apply the rules of conduct in with reference
to the relationship between the legal
practitioner and the state with respect to:
• respect for legal order
• political dissent
• criminal conduct
• assisting clients breaking the law
LO7: Apply the rules of conduct in with reference
to the relationship between the legal
practitioner and the Legal Practice Council
to:
• Fees, Fidelity Fund Certificates, Trust
monies, trust accounts; trust property,
accounting records
• Status (Practicing or non-practising,
transfers)
• Conduct Rules

Theme 2: Enforcement of Discipline PM: Mahomed et al

LO8: Provide an overview of para 3.2.3 p.35
• misconduct in the profession
• the application of the three-step enquiry Code of conduct:
(suspension/striking off and readmission) https://lpc.org.za/legal-
LO9: Explain the process and procedure in practitioners/code-of-
relation to the conduct/
• enquiry into alleged misconduct;
• investigation of alleged conduct
• disciplinary procedure
• rights of appeal Klaaren (2020) p. 542
• publication of particulars of the (paragraph dealing
disciplinary hearing with discipline)
• offences and penalties
LO10: Provide an overview of sanctions that may
be imposed in respect of:
• legal practitioner
• candidate attorney
• juristic entity
Theme 3: Specific Issues Relating to Discipline PM:

LO11: Distinguish between professional negligence Mahomed et al
and misconduct Chapter 3
LO12: Advise regarding the legal practitioner’s
duties in relation to
• Trust accounts
• Fees
• Fidelity fund

Learning Unit 5 Ethical Conduct in the Public Service
Overview:
Members of the National Prosecuting Authority (NPA) and judges are themselves not above
the law. As a community that is bound by rules to uphold the rule of law, it is their solemn
duty to conduct themselves ethically in the public service. The Judicial Services Commission
is tasked with the selection and recommendation of judges who are worthy of appointment.
By appointing ethical judges, the impartiality and independence of the judiciary are
safeguarded. However, even in the constitutional era, there are those who seek to
undermine the independence of both the judiciary and the NPA.
In this learning unit, we will look at ethical conduct in the public service by critically
evaluating several concepts, such as good faith and impartiality, and the oath of office taken
by public office bearers. We will also be discussing the ethical obligations of public office
bearers, assessing the extent of ethics in public sphere training, and evaluating the
enforcement of discipline.


Sessions: Theme 1: Concepts Prescribed Material (PM)
22-26
Related LO1: Critically evaluate the following PM:
Outcomes concepts: Explain the meaning and Section 179 (4) of the
: application of: Constitution
MO001 • good faith
S32 of the NPA Act
MO002 • Impartiality
MO003 • Judicial independence
NPA Revised Code of Ethics
• without fear, favour or prejudice
• interest of the administration of Corruption Watch NPC and
justice and public interest Others v President of the
• improper interference with Republic of South Africa and
prosecutorial duties Others [2018] ZACC – importance
• subject to the Constitution and independence of the office
LO2: Critically evaluate the oath of office of the NDPP para 18, 19,20, 21
taken by public office bearers
Mokgoro Commission abridged
report paras 490, 491, 492, 493,
499
Theme 2: Ethical Obligations of Public Office PM:
Bearers
LO3: Explain with reference to prosecutors, Prosecution Policy (2013) (para 3
and 9 only)
discuss the requirements for proper
performance of duties
S179 of the Constitution (the
LO4: Explain with reference to DDP and
exercise of public power must be
NDPPs the: rational and lawful)
• fit and proper requirement ito the
Admission of Advocates Act and GCB S7(1)(d) of Admission of
as custos morum Advocates Act No 74 of 1964
• fit and proper, conscientiousness
and integrity ito s9(1)(b) of the NPA Section 9(1)(b) and Section
Act 12(6)(a) of the National
• meaning of misconduct Prosecuting Authority Act
• powers to prosecute as they relate
Corruption Watch NPC and
to lawfulness and rationality ito s179
Others v President of the
of the constitution and 22(2)(c) of
Republic of South Africa and
the NPA Act Others [2018] ZACC – importance
• reviewability of decisions not to and independence of the office
prosecute of the NDPP; Nxsasana’s removal
and Abraham’s appointment -

LO5: Explain with reference to Judges the: para 18, 19,20, 23, 28, 29. 31,
• fit and proper requirement in terms 35, 70, 88
of s174 of the Constitution
• without fear or favour in the DA v The ANDPP (2012) para 35-
37 re reviewability a decision not
context of s165 of the Constitution
to prosecute
• Judicial Service Commission Act
(section 17(8)
Zuma v DA (836/2013) [2014]
• meaning of misconduct, gross ZASCA para 35, 38 re
misconduct and gross accountability, prosecutorial
incompetence independence of the NPA
• the difference between judicial
independence and judicial Judicial Service Commission Act
responsibility (s17(8))
• the role of the JSC
• Code of Judicial Conduct Mokgoro Commission Report (re
Jiba and Mwrebi) abridged
• Judicial Conduct Committee
report paras 465, 466, 467, 468,
• Judicial Conduct Tribunal
469
• Grounds and process for judicial
impeachment Mashengoane 2014 (2) SACR 623
(GP) para 24
Joubert 12th ed pp.76-77
Code of Judicial Ethics

Judicial Ethics in South Africa
(including guidelines for judges)
Judicial Conduct Code (article 12

and 14(2))
Judicial Conduct Tribunal

Harms ‘Judicial ethics and
complaints procedures’ The
Advocate (2006) pp.20-21
Justice Alliance v President 2011

– judicial independence para 38

Theme 3: Ethics in Public Sphere Training

LO6: Assess the extent to which ethics is
addressed in the Justice College
Curriculum with reference to
prosecutors
LO7: Explain the purpose of the South PM:
African Judicial Education Institute.
Theme 4: Enforcement of Discipline PM:

LO8: Critically evaluate the views expressed Ginwala Commission Report, (re
by the courts, commissions of enquiry Adv Vusi Pikoli) pp51-55, 177-
179, 184-184, 212 (para (i))
and tribunals regarding:
• grounds for dismissal in terms of s12
Jiba & another v The General
of NPA Act
Council of the Bar of South Africa
• grounds for striking off of advocates and Mrwebi v The General
appointed to office in the NPA Council of the Bar of South Africa
• grounds for impeachment of judicial (141/17 and 180/17) [2018]
officers ZASCA paras 3-5, 13, 18,
21,22,27,28,29,33,34, 45, 46,53,
55, 56,57,58,60, 67,68
Corruption Watch NPC and

Others v President of the
Republic of South Africa and
Others [2018] ZACC
Mokgoro Commission Report (re

Jiba and Mwrebi) abridged
report paras 437, 476, 477, 479,
483, 487
Democratic Alliance v the

President of the Republic of
South Africa 2013(1) SA 248 (CC )
para 26
Freedom under Law (FUL) v NDPP

2018 (paragraphs 83 to 98)

Report of Judicial Conduct

Tribunal – Re Judge Motata
pp.15-23
Klaaren J (2009) Hlophe JP and

the current politics of the SA
Judiciary
Learning Unit 6 Legal Ethics and Social Justice
Overview:
Section 34 of the Constitution provides that ‘everyone has the right to have any dispute that
can be resolved by the application of law decided in a fair public hearing before a court or,
where appropriate, another independent and impartial tribunal or forum’. Unfortunately,
this is not the reality in South Africa. One such reason is that legal practitioners are
expensive. In an attempt to address this, the Legal Practice Act 28 of 2014 has made
community service compulsory for legal practitioners.
In this learning unit, we will explain several concepts related to social justice, discuss the
history and importance of Legal Aid SA, as well as the Small Claims Court as a means of access
to justice. We will also discuss the duty of legal practitioners to the poor, outline the
advantages and disadvantages of pro bono services, provide an overview of the role played
by NGOs in the provision of free legal services, as well as an overview of the state of public
interest law in South Africa. Finally, we will provide brief overviews on several significant
public interest litigation cases, explain several concepts related to public interest law, and
discuss the role of amici curiae in public interest matters.


Sessions: Theme 1: Concepts Prescribed Material (PM)
27- 31
Related LO1: Explain the following concepts: PM:
Outcomes: • Social justice Mahomed et al para 2.8.3
MO001 • access to justice Klaaren (2020) pp.543-544
MO002 • public interest law
MO003 • paralegal services McQuiod-Mason THE
• in forma pauperis proceedings DELIVERY OF CIVIL LEGAL
• Legal Insurance Schemes AID SERVICES IN SOUTH
• Compulsory Community AFRICA, Fordham Int'l L.J.
Service for Legal Practitioners 111 (2000)
LO2: Discuss the history and
importance of the Legal Aid with Legal Aid Manual
specific reference to:
• Justice Centres
• Judicare
• Co-operation Agreements
• Impact Litigation Services
LO3: Discuss the Small Claims Court as
a means of access to justice.
Theme 2: Pro Bono/Public Interest Law PM:
LO4: Discuss the duty of the legal Mahomed para 2.8.3; 3.9
practitioner to the poor
LO5: Outline the advantages and Klaaren (2020) p.544
disadvantages of pro bono
services Budlender, Marcus and
LO6: Provide an overview of the role Ferreira Public-interest-
played by non-government litigation-and-social-
organisations in the provision of change-in-South-Africa
free legal services pp.6.15
LO7: Provide an overview of the state
of public interest law in South
Africa with reference to:
• the need for this “branch” of
law
• the practice of PIL in the
democratic era

Theme 3: Case Studies in Public Interest PM:

Law Litigation
LO8: Provide a brief overview of the Budlender, Marcus and
following cases: Ferreira Public-interest-
• Grootboom Case and the right litigation-and-social-
to housing change-in-South-Africa pp.
• Treatment Action Campaign 25-77
and the prevention of mother-
to-child transmission of HIV
• Joseph case and access to
electricity
• Mazibuko Case and access to
water
LO9: Explain the following concepts
with reference to public interest
law:
• standing
• ripeness
• mootness
LO10: Discuss the role played by amici
curiae in public interest matters

Learning Unit 7 Gender and the Law
Overview:
Universally, gender inequality is a problem within the legal profession. Despite over 20 years
of democracy in South Africa, the legal profession is still dominated by men. This is especially
true for the judiciary. While efforts have been and are still being made to attain gender
equality within the legal profession, the rate at which this is taking place is troublingly slow.
In this learning unit, we will look at gender and the law, by providing an overview of
discrimination in the legal profession, discussing the attempts at transformation within the
legal profession, explaining sexual harassment, as well as how it constitutes misconduct and
unethical behaviour. We will also look at an overview of action taken against legal
practitioners in terms of code of conduct policies relating to sexual harassment, providing an
overview of legislation that impacts women’s rights, and assessing the development of
gender equality jurisprudence in South Africa.


Sessions: Theme 1: Discrimination within the Legal Prescribed Material (PM)
32-36 Profession
Related LO1: Provide an overview of PM:
Outcomes: discrimination in the legal profession Mahomed et al para 2.6.2
MO001 Chitapi R “Women in the legal
MO002 profession in SA(2015) Chapter 2;
pp-48-58 (Gender bias in the
MO003
profession; Sexual Harassment,
sexuality and sexualisation)
Theme 2: Transformation PM:
LO2: Discuss the ways in which the Justice Justice Charter
Charter and the Legal Practice Act
have attempted to deal with
discrimination within the legal http://www.cge.org.za/wp-
profession. content/uploads/2016/12/CGE-
LO3: Discuss the particular ways in which Lack-of-Gender-Transformation-in-
gender discrimination is being the-Judiciary-Investigative-Report-
addressed in the legal profession. .pdf
Manyathi-Jele “Project to address

gender transformation of the legal
profession launched” De Rebus,
September 2015:8 [2015]
DEREBUS 152
Theme 3: Sexual Harassment PM:
LO4: Explain what is meant by sexual Unfair Discrimination and the
employers liability
harassment.
https://www.ccma.org.za/labourlaws/
LO5: Discuss ways in which sexual unfair-discrimination-and-the-
harassment amounts to both employers-liability/
misconduct and unethical behaviour Kristi Erasmus “Legal Industry pays
lip service to sexual harassment of
female legal practititioners in
2020” (27 July 2020) – article in
Tech4law
https://www.tech4law.co.za/business/
sexual-harassment/legal-industry-
pays-lip-service-to-sexual-harassment-
of-female-legal-practitioners-in-2020/

Athandiwe Sabe “Rape claim

tarnishes legal profession” – (22
September 2017) article, Mail &
Guardian
https://mg.co.za/article/2017-09-22-
00-rape-claim-tarnishes-legal-
profession/
Theme 4: Enforcement of Codes of PM:
Conduct in Relation to Sexual
Harassment
LO6: Provide an overview of action taken Rule 6 of the Code of Conduct
against legal practitioners
LO7: Provide an opinion as to whether LPC’s Sexual Harassment Policy
enough is being done to prevent
sexual harassment within the legal
profession.
Theme 5: Impact of Gender on the Law PM: Mthembu v Letsela and
LO8: Provide a brief overview of Another 1998 (2) SA 675 (T) –
legislation impacting the rights of customary law of intestate
succession regarding the rights of
women with specific reference to:
women to inherit
• The Children’s Act 38 of 2005
• Domestic Violence Act 116 of
Woolworths (Pty) Ltd v Whitehead
1998 (Women’s Legal Centre
• Employment Equity Act 55 of Intervening) 2000 3 SA 529 (LAC)
1998
• The Criminal Law (Sexual Offences Carmichele v Minister of Safety
and Related Matters) Amendment and Security 2001 (4) SA 938 (CC);
Act 32 of 2007 2001 (10) BCLR 995 (CC) - the
LO9: Assess the development of gender State’s constitutional duty to
equality jurisprudence in South safeguard the rights of women –
para 62
Africa
S v Jackson 1998(1) SACR 470

(SCA); S v J 1998 (2) SA 984; 1998
(4) BCLR 424) - The SCA held that
the cautionary rule in sexual
assault cases is based on an
irrational and outdated perception.

S v Baloyi (Minister of Justice and

Another Intervening) 2000 (2) SA
425 CC; 2000 (1) BCLR 86 (CC);
2000 (1) SACR 8 (CC) – The CC
declined to confirm the order of
invalidity and held that s3(5) of the
Prevention of Family Violence Act
1993 invalid and held that the
section does not create a reverse
onus and did not affect the
presumption of innocence of an
accused person.
Robinson and Another v Volks NO

and Others 2004 (6) SA 288 (C) ;
2004 (6) BCLR 671 (C) – compare
majority and minority judgements
Grobler v Naspers BPK en ‘n Ander

2004(4) SA 220 (C) – the court held
the employer vicariously liable for
damages caused by sexual
harassment of the plaintiff.
Peterson v Maintenance Office,

Simon’s Town’s Maintenance
Court, and Others 2004 (2) SA 56
(C) – declared paternal
grandparents had a legal duty to
support extramarital child of the
applicant to the same extent as the
maternal grandparents – [but has
the law been amended???]
Tshabalala v S; Ntuli v S 2020 (5) SA

1 (CC) – held that an accused can
be convicted of common law rape
on the basis of common purpose.

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IIE Module Outline LEET8411

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Using this Module Outline

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This Module on Learn

• A list of prescribed material;

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Icons Used on Learn

Specific references to sections in the prescribed work.

Questions to help you recognise or think about theoretical concepts to be covered.

Opportunities to make connections between different chunks of theory in the

Real life or world of work information or examples of application of theory, using

You need to log onto Learn to:

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Bonnin D, Striking a Regulatory Bargain The Legal Profession, Associations and

Madlalate R, Legal Education in South Africa: Racialized Globalizations, Crises, and

Perez A ‘Morality v ethics v law’

van der Westhuizen A Few Reflections…African Human Rights Journal 2008

Wildenboer Origins of the divisions in the legal profession pp.219 -222

Wacks, R. (1988). Judges and Injustice. Bulletin of Australian Society of Legal

TRC Final Report, Volume 4, pages 96-

Geduld A, Decoloniality, ubuntu and human rights in South Africa: a bridge to

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Prescribed reading: Summary of J Michael Kelly’s four levels of ethics

Klaaren, Jonathan, South Africa: A Profession in Transformation (March 19,

Madlalate R, Legal Education in South Africa: Racialized Globalizations, Crises, and

Legal Practice Council: https://lpc.org.za/members-of-the-public/particulars-of-

© The Independent Institute of Education (Pty) Ltd 2024 Page 8 of 38

Prosecution Policy (2013)

Judicial Conduct Tribunal

Ginwala Commission Report

Report of the Judicial Conduct Tribunal re Judge Motata

Budlender, Marcus and Ferreira Public-interest-litigation-and-social-change-in-

LPC’s Sexual Harassment Policy

Manyathi-Jele “Project to address gender transformation of the legal

© The Independent Institute of Education (Pty) Ltd 2024 Page 9 of 38

Godfrey, S. (2009). The Legal Profession: Transformation and Skills. South

Amy Gordan and David Bruce TRANSFORMATION AND THE INDEPENDENCE OF

Klaaren J, South Africa: A Profession in Transformation in Lawyers in 21st-

Manyathi-Jele, N. (2015). National Forum Meeting on 31 May 2015. De Rebus

Sedutla, M. (2017). Future of the legal profession discussed at BLA NGM. De

Whitear Nel and Freeman historical context of legal profession p.235

Prescribed All case cited in Chapter 3 of Mahomed et al

DA v The ANDPP (2012)

Mashengoane 2014 (2) SACR 623 (GP)

Democratic Alliance v the President of the Republic of South Africa 2013(1) SA

Freedom under Law (FUL) v NDPP 2018

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Formatives Assignment Test

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Assessment Preparation Guidelines

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Learning Unit 1: History of Legal Profession in South Africa

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Theme 2: Transformation of the Legal PM:

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Learning Unit 2 Legal Ethics