Dealing with errant professionals

With many state entities failing, rampant corruption not only in the public sector but the private sector too, just how do we deal with registered professionals who have crossed to the other side? Do we punish them, suspend them, or is rehabilitation an option? To B uild asked our legal eagle, Advocate Bryan Hack, to comment.

The television coverage of criminal trials would have made many readers familiar with the courts’ views regarding the purposes of punishment. Often quoted are the words of the judge in State v Rabie 1975 (4) SA 855 (A) where the Appellate division (as it was then called), now the Supreme Court of Appeal, reiterated that the main purposes of punishment are deterrent, preventative, reformative and retributive.

The court quoted a Scottish author on the law as follows1: ‘The retributive theory finds the justification for punishment in a past act, a wrong which requires punishment or expiation... The other theories, reformative, preventive and deterrent, all find their justification in the future, in the good that will be produced as a result of the punishment.’

The Appeal court went on to say that it is therefore not surprising that the judge in an earlier case2 observed that, ‘the retributive aspect has tended to yield ground to the aspects of prevention and correction’.

So too I have observed, in my professional sphere, the application of the above. When it comes to applying the punitive terms of professional codes of conduct applicable to the legal fraternity there, has been a focus on the future role of a practitioner rather than merely focusing on his or her past sins.

In my respectful view, this is a salutary approach, to be adopted in all professions. It is of course of prime importance to protect the public from any failings of any professional to maintain the highest standards applicable to the profession. It is self-evident that an attorney must not steal from his trust fund, a doctor must adhere to proper procedures when dealing with patients and an engineer must follow established principles of building standards and codes to ensure a safe environment to all who use a structure. At the same token all humans are

volume 10 | issue 1 www.tobuild.co.za fallible. Mistakes do occur. Errors are made, even lapses in good judgment.

While there will always be a place for punishment and, in appropriate circumstances, the removal of a professional from the potential of creating more harm, it is necessary to recognize the need to place sufficient emphasis on rehabilitation. This is particularly so in a country where skills are scarce. It is a notorious truth that South Africa has a skills shortage for many reasons. One such reason is the limited available resources to educate. I would therefore proffer the view that all professional codes of conduct should contain a significant emphasis and procedure, wherever possible and reasonable, to rehabilitate an errant member with appropriate training. To again use the example that I am familiar with, an attorney whose conduct does not conform to the required standards, can be required to attend accounting or practice management courses or even a fresh course in professional ethics. I think it reasonable to assume similar provisions can be incorporated in all professional codes of conduct.

Advocate Bryan Hack currently serves as an Acting Judge in the High Court, Cape Town Bench. He writes for To Build in a spontaneous and unrewarded capacity, in the interest of furthering the cause of the law in the built environment community. He can be contacted on hack@capebar.co.za

References: 1. Gordon, Criminal Law of Scotland, (1967) at p. 50: 2. R. v Karg, 1961 (1) SA 231 (AD) at p. 236A,