Professional Councils

Professional councils are established to set norms and standards in many professions. They are also there to protect the public from professional misconduct by their members. But do they work? In this post we will look at the Legal Practice Council (LPC), the Engineering Council of South Africa (ECSA) and the National Home Builders Registration Council (NHBRC). We also look at whether the councils’ disciplinary processes are effective. And can the victims of professional misconduct get some degree of closure?

Our house building nightmare brings into question the ethics and standards of the builder/developer, engineer and attorney involved and their professional councils.

1. The Legal Practice Council (LPC) is investigating the builder’s attorney.
2. ECSA investigated the builder’s engineer.
3. The NHBRC is investigating numerous complaints against the developer/builder.

To put this post into context, read our home page On Rocky Ground and How We Got Here.

Who do professional councils protect?

• Do they protect the very professionals who subscribe and pay their registration fees?
• Or, do they protect the public from professional misconduct and abuse by these professionals?
• Who should the professional councils protect?

After all, being a professional does not automatically mean you have the highest standards of ethics and honesty. It is a utopian ideal to strive for, but the ideal is likely to remain just that, an ideal that is unattainable.

Professional Council – Lawyers

Legal Practice Council (LPC)

Code of Conduct

To quote Part II of the Legal Practice Council Code of Conduct

3.           Legal practitioners, … shall –

3.1         maintain the highest standards of honesty and integrity; …

3.3         treat the interests of their clients as paramount, .. subject always to: …

3.3.4      the maintenance of the ethical standards prescribed by this code, and any ethical standards generally recognised by the profession;

For more information about the Legal Practice Council, click LPC Homepage. The homepage says all the right things, the stuff we want to hear, but are they living up to their own ideals? I have yet to find anyone who praises their work. There are critics galore from judges and attorneys to legal journalists.

GroundUp and the LPC

On 8  November 2021, Tania Broughton of GroundUp wrote in her article “High Court Warns Legal Practice Council”:

• The Cape High Court has directed the Legal Practice Council (LPC) to investigate its systemic failures and report back in three months.
• This comes after the LPC and its predecessor did nothing for eight years to strike off a delinquent attorney.

To do nothing for 8 years is shameful – how many others were harmed by this delinquent attorney in the 8 years of inaction?

Western Cape High Court judges Mark Sher and Lee Bozalek said of the LPC:

If practitioners who contravene the rules are not dealt with promptly and effectively … a culture of impunity is fostered and the profession is lowered in the eyes of the public.

We hope the LPC will take this both as a warning and an opportunity to get its house in order.

To read the full article and the judgement, click here.

Not only has the LPC been told to get its house in order, but GroundUp is exposing a further high profile case where the LPC’s inadequacies are again exposed. The case is of attorney Lesley Ramulifho and the Lottery corruption probe. Read the full article of 3 May 2021 exposing these shenanigans in court. To quote the headline:

Incompetent LPC decision has given the green light to lawyers who wish to commit fraud.

With GroundUp’s litigation and the words of judges Mark Sher and Lee Bozalek hopefully the LPC will finally get its house in order.

Our Encounters with the LPC

Misappropriation of Trust Funds

In March 2020 we submitted a complaint to the LPC of the Western Cape. Each province deals with the practitioners in its area. As our house building disaster is in the Western Cape that is the jurisdictional area for the matter. Most people thought we were wasting our time reporting the attorney. After all these months, I wonder if they were right? Sadly, what I read in GroundUp confirms that we may well have been wasting our time.

We began with a simple matter. The conveyancing attorney paid the fifth and final payment to the builder without the payment criteria being met. The payment should only have been made after the builder obtained an occupation certificate. Our post on the Building Agreement shows all the conditions to be met for drawdowns and payments.

Final Payment Clause states:

Fifth and final payment being 10% of the purchase price .. to be paid upon obtaining the Occupation Certificate.

The builder knew there was no Occupation certificate. The conveyancer knew there was no Occupation certificate. And yet, the conveyancer paid the final amount from our monies held in her Trust account. Also, the builder/developer accepted the payment knowing they were not entitled to it! After numerous requests the attorney has failed consistently to answer any question regarding the fifth payment.

Misappropriation of trust funds is serious professional misconduct. Will the Legal Practice Council ensure we get the interest that is due to us?

Will the Punishment Fit the Crime?

If the LPC fines the attorney, that does not benefit us. When the damage caused through misconduct can be many thousands of rands, can the LPC make the punishment fit the crime? Can they force the attorney to claim from the indemnity fund so the victim receives compensation?

Further Misappropriation of trust Funds

This attorney paid money to her client, the developer/builder from our funds held in her Trust account.

• No monies should have been paid out prior to registration of transfer.
• As she is the conveyancing attorney for the developer, the attorney knows exactly when transfers take place.
• However she decided to pay her client prior to transfer, enabling the builder to start building when he had no right to build.
• She continued to pay the builder, still prior to transfer, without our knowledge and without draw forms.
• This meant the builder could continue building when he had no right to build. If the builder had not been paid he could not have been building.

This attorney’s professional misconduct has had dire consequences, but will the Legal Practice Council see it that way?

The disciplinary committee heard the case on 2nd July 2021. The committee disbanded a year later without ever concluding the disciplinary processes. A new investigating committee discussed the matter on 12th July 2022. This committee, like the previous, has also given the attorney extra time to answer questions. Now we wait till 8th August 2022 but I won’t hold my breath!

I am told members of the disciplinary committee are volunteers and they run their own legal practices and “cannot be hurried”. Members of the disciplinary committee should not be there unless they are committed to seeing matters through to the end in a timely fashion.

This professional council has a very checkered history. As a victim of professional misconduct that is no comfort.

Professional Council – Engineers

The Engineering Council of South Africa (ECSA)

ECSA’s vision statement is to be “an effective regulator assuring engineering excellence.”

Vision

ECSA seeks to achieve this vision through:

• Determining engineering standards for education, accreditation and registration;
• Registration of Engineering practitioners;
• Developing  and  sustaining .. practice standards;
• Enforcing compliance  ..;

Values

• Professional – Conduct beyond reproach to the highest ethical standards underpinned by integrity, quality, timeliness, trust and respect.
• Accountable – Doing what we commit to do .. and being answerable for our failures .. .
• Collaborative – .. to achieve exceptional results.
• Transparent – Honest and open communication and sharing of information between stakeholders.
• Innovation

Opening a Case of Professional Misconduct

In June 2020 we opened a case of misconduct with ECSA against the engineer. Why? He signed off the agricultural drain for the cellar without seeing it. He signed it off even when he knew it had been installed incorrectly. As the cellar ended up under about 600mm of water for months on end, that sign-off has had major ramifications. The engineer attended the remedial works during July 2020. However the cellar continues to have severe damp issues.

At the end of July 2020 ECSA sent me the name of the engineer appointed to investigate our complaint. A few days later the inspector called. He knew my number and he knew how to contact me.

Pictures taken by the inspector.

The Inspector and Trespass

We heard nothing more till 1 April 2021 when, out of the blue, the inspector called me.

• He called to say he had been to the house and had walked around the outside taking photos.
• He did not ask permission nor did he request access into the house.
• These actions by the inspector may also be considered to be professional misconduct and even trespass.
• Would you go to someone’s house, uninvited and unexpected, and walk around taking photos?

What was the point of walking around the outside? The cellar is inside and to see the problem roof structure the access is through the ceiling inside!

The next thing we heard from ECSA regarding the engineer (respondent) was:

There is no evidence that the Respondent transgressed any rule of the Code of Conduct for Registered Persons.

So, signing off part of a building without seeing it and knowing it was not ideal, is OK? Really? And changing a roof structure so rooms do not comply is not professional misconduct?

Is this Professional Council protecting the public or is it protecting its registered members?

Profession Council – Home Builders

The National Home Builders Registration Council (NHBRC)

The council was set up in 1998, to  standardize and formalize the building industry. We have found the NHBRC truly willing to help. But they are also constrained in what they can and cannot do. Take a look at our post on the National Home Builders Registration Council (NHBRC).

Complaint – Non-Enrolment of a Home Build

The disciplinary hearing found the builder guilty on the charge of non-enrolment of our house build. But, that has not yet brought any positive result. We still have a non-enrolled house and we still have a house we cannot occupy.

Complaints – Not Upholding the NHBRC Guidelines and Much More

The Builder failed to:

• conduct business in an honest and fair manner;
• honour all obligations imposed on a Home Builder in terms of the Act;
• comply with all duties of a Home Builder set out in the Act;
• enrol the home build with the NHBRC;
• notify the NHBRC 15 days prior to commencement of building works.

This builder began building:

• without building plans approved by the Local Authority, and
• prior to transfer of the land.

In our case the builder was paid in full prior to transfer and without enrolling the build.

The Builder failed to:

• build to acceptable standards;
• provide a home fit for purpose;
• complete the build in the agreed time;
• obtain an Occupation Certificate.

Contrary to the Building Agreement, the Builder varied terms of the Agreement without our consent.

No resile clause:

There is no resile clause in the Building Agreement. A resile clause allows the housing consumer to resile from the contract if the builder does not complete the building within the specified time. In our case the builder specified the time of 8 months. It is now more than 4 years later and we still cannot occupy the house.

Conclusion

It is really important to have regulators to ensure ethical behaviour and to protect the public. We need protection against professional misconduct and abuse by those we trust. But, are the councils fulfilling their roles and are they affective?

If you have a good or bad experiences with any of the professional councils, please comment.