No Shortcut To Investigation: Section 43 Of The Legal Practice Act Is An Extraordinary Provision

The Western Cape Division of the High Court, Cape Town (“the Court”) handed down judgment in The South African Legal Practice Council v Van Wyk and Another on 21 July 2026. The Court was required to determine whether the Legal Practice Council (“LPC”) could invoke section 43 of the Legal Practice Act 28 of 2014 (“the LPA”) to urgently suspend two legal practitioners from practice without investigating the complaint against them.

Factual background

The LPC sought to suspend Ms Adele Van Wyk (“the first respondent”) and Ms Andaleen Chimes (“the second respondent”), both directors of A Chimes Van Wyk Inc (“the firm”) pending their striking from the roll. The basis was a complaint from the first respondent’s estranged husband (“the complainant”) alleging misappropriation of trust funds exceeding R16.9 million through fictitious transactions, falsified signatures and the diversion of funds into dormant family trusts.

Notably, the complaint was lodged seven months after the complainant had filed a counterclaim in contested divorce proceedings making identical allegations. The LPC’s Investigating Committee (“the IC”) met with the complainant and his accountant on 8 October 2025, recommended that the matter proceed on the same day, and authorised the urgent application eight days later. The respondents were never notified, of the investigation, furnished with the complaint, or given an opportunity to respond.

Section 43 requires satisfaction not suspicion

Section 43 of the LPA is an extraordinary provision. It permits urgent intervention only where a disciplinary body is “satisfied” that a practitioner has misappropriated trust monies or is guilty of other serious misconduct. The Court made clear that this required an objective state of conviction reached on verified facts, not mere suspicion and not the untested acceptance of a complainant’s narrative at face value.

Relying on South African Legal Practice Council v Marais and Mavudzi and Another v Majola and Others, the Court held that an investigation is “not an event limited to a discussion” but a process requiring meaningful interrogation of the allegations, a call for submissions and engagement with the practitioner concerned.

The LPC’s process was fundamentally defective

Measured against these standards, the LPC’s process was deficient. No proper investigation was conducted, no notice was given to the respondents, and no opportunity to respond was afforded before the decision was taken to invoke section 43. The LPC’s satisfaction was reached solely on the strength of the complainant’s untested allegations.

Two factors ought reasonably to have prompted the LPC to call for the respondents’ version before proceeding. First, the complaint was a carbon copy of the counterclaim in divorce proceedings, yet the LPC never explained how it assessed whether the complaint had been lodged to gain a tactical advantage in the private divorce litigation. Second, the impugned transactions dated back over a decade, and no explanation was offered for the delay in the delivery of the complaint.

The second respondent’s position underscored the inadequacy of the LPC’s process. No complaint had been lodged against her at all. The LPC implicated her derivatively as a co-director, yet did not pursue the firm’s third director, Ms Lauren Marthinus, on the same basis. The Court found this differential treatment to be irrational and held that the failure to join Ms Marthinus constituted a fatal non-joinder.

Conclusion

The judgment confirms that section 43 is an exceptional remedy that presupposes a completed investigation and cannot serve as a substitute for one. The LPC cannot bypass the fundamental requirements of procedural fairness, particularly the audi alteram partem principle, simply by characterising its application as urgent. A complaint, however serious on its face, does not relieve the LPC of its obligation to investigate before it litigates. The application was dismissed with costs.