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Institutions that regulate the legal profession don’t inspire confidence

The lack of accountability and rationalisation of unethical and egregious behaviour is characteristic of many professions, but the key problem in the legal profession is that the Judicial Service Commission and Legal Practice Council have failed to show that members will be held accountable both to its legal and ethical commitments.
Professor Balthazar
By Professor Balthazar
2 Nov 2025
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Professor Helen Kruuse, in an insightful article published in Daily Maverick on 20 October 2025, has argued that lawyers, by training, rationalise par excellence ethical breaches into technicalities and submissions into misunderstandings. They even convert a clear lie into an alternative framing of the case.

Read more: Lawyers and the art of the fudge — a reflection on a JSC interview

The question can be posed as to whether this pattern of behaviour is inherent in the legal profession or whether there is a broader problem in terms of which being a member of a technical profession invariably promotes a similar kind of activity.

I have in mind the medical profession, which is notorious for failing to hold its own recalcitrant members accountable to its own professional standard of ethics. For example, a recent study (see Health SA 2025, September) has found that fraudulent conduct remains the highest reported unethical transaction among registered healthcare professionals in South Africa. 

On numerous occasions in South African history, from the notorious doctors who contributed to the conditions which led to the death of Steve Biko to the care of Dr Wouter Basson, there have been clear failures of accountability of medical practitioners to ethical commitments and law.  

That is no excuse in respect of the legal profession from the criticism which Professor Kruuse has levelled. It is, however, to raise the broader context in terms of which professional bodies so often fail to hold their colleagues accountable. Ironically, Dan Ariely, the author of key research cited by Professor Kruuse, was himself accused of using false data in a key research paper!

But without doubt, the legal profession must stand accused of the conduct referred to by Professor Kruuse. Professor Kruuse correctly refers to the infamous case of Geach, where advocates were caught double-briefing and overcharging. There was a monumental failure to hold these practitioners to proper account.

In his minority judgment, Judge Malcom Wallis would have upheld the appeal of the General Council of the Bar in respect of a number of these advocates and struck them from the roll of advocates. That, however, was the minority judgment. Accordingly, these advocates escaped the ultimate sanction.  

Legal Practice Council


More recently, the conduct of the Legal Practice Council (LPC) has left much to be desired. Judith February has written of the mishandling of disciplinary cases and allegations of financial mismanagement by CEO Charity Nzuza. 

The LPC’s credibility is in free-fall. In one remarkable case, where a number of judges lodged a complaint before the LPC against attorney Barnabas Xulu, no progress has been evident, although the complaint was lodged a number of years ago.

There have been a series of complaints lodged against advocate Dali Mpofu SC.  When certain of the charges against Mr Mpofu were dropped, but others remained, Casac’s Lawson Naidoo noted that Casac had lodged the complaint almost two years previously. He voiced serious concern at the amount of time it had taken to deal properly with this complaint.  

Sexual harrassment


Most recently there has been what can only be described as an unseemly hearing of the Judicial Conduct Tribunal, dealing with complaints of sexual impropriety by the Judge President of the Eastern Cape, Selby Mbenege.  This is a matter in which the Judicial Tribunal has reserved judgment. 

Little can be said at this stage about the outcome or the merits of the evidence. But the image of the judiciary has surely been significantly tainted by evidence in this case, whatever the ultimate finding.

That it can be suggested that allegations of sexual harassment are due to a “western orientated perspective” would be disturbing in any such case.   That it is raised in the context of the tsunami of rape and sexual harassment that engulfs South Africa only compounds the outrage that, for example, thousands of black women who suffer sexual assault each year must surely feel about this kind of defence. 

Read more: Get off your feminist, Western, culturally superior, subjective high horse, Mbenenge’s lawyer tells tribunal

That brings this column to the very serious allegations of sexual harassment within the profession. The edition of August 2025 of The Advocate commendably devoted an entire edition to sexual harassment at the Bar.

It published a number of articles by senior practitioners who provided evidence of what is clearly an insidious practice within the profession. One can only wonder whether the compelling evidence published in this volume will be rationalised as being the complaint “of a few women” or whether serious steps will be taken to deal with the problem.

Within this context, it is not surprising that a number of candidates who come before the Judicial Service Commission appear to feel that they can get away with disingenuous answers to questions put by the commissioner.

Wider problem


There is, of course, the broader problem. For a number of years, the JSC, whether in its vacillation regarding what was the interminable case relating to Dr John Hlophe, or the utterly inconsistent treatment visited upon candidates for judicial office, has contributed to a significant reduction in the legitimacy of itself and concomitantly of the judiciary.

Although the lack of accountability and the rationalisation of unethical and egregious behaviour are characteristic of many professions which consider that expertise places them above ethical standards of normal people, Professor Kruuse has made a significant contribution to highlighting significant problems within the South African legal profession. 

The real problem is that the JSC and the LPC, the two institutions which are central to the regulation of the profession, have both displayed a record that fills the public with little, if no confidence, that the legal profession will be held accountable both to its legal and ethical commitments. DM