On 29 November 2024 the Supreme Court of Appeal found that, where the National Consumer Commission was represented in the high court by a former attorney who had no right of appearance because his name had been struck from the roll of legal practitioners, it fundamentally prejudiced the administration of justice and the proceedings were a nullity to be started again.

The conduct of a legal practitioner implicates the public interest. The presence or absence of prejudice in setting aside proceedings in a particular case is not relevant. Public interest relates to the administration of justice and is not limited to criminal proceedings. The administration must meet the standard required to give the public at large confidence in the administration of justice and instill respect in the courts and compliance with court orders. An indulgent attitude towards fraud within the administration of court proceedings, broadly, is intolerable.

In a contractual setting the insidious effects of fraud permeates the entire legal system. It renders contracts voidable and has other effects on contractual exemptions and ouster clauses.

It was held that the Commission failed dismally in its due diligence process when it appointed the struck-off attorney. In contravening the provisions of the Legal Practitioners Act, the struck-off lawyer committed a criminal offence and brought the administration of justice into disrepute. The fraud was committed in court, the very institution tasked with ensuring that the values of the Constitution are upheld. The fraud committed could not be condoned.

The matter was referred to the high court for a new hearing by a differently constituted court.

Not all fraudulent conduct unwinds everything. For instance, a partly fraudulent insurance claim may be payable as to the loss legitimately claimed (in the absence of a fraud clause).

[Platinum Wheels (Pty) Ltd v The National Consumer Commission [2024] ZASCA 163]