The conveyancer and ethics

 THE CONVEYANCER AND ETHICS

You will note that I refer to “the Conveyancer and Ethics” rather than to “the Property Lawyer and Ethics”. I do this because I was always reluctant to regard myself as a property lawyer. I’m more comfortable with the designation “Conveyancer”. A property lawyer is a rare breed and I certainly do not profess to be part of that erudite band of brothers and sisters who not only are good conveyancers but who are also people well versed in the following: taxation law, water law, environmental law, expropriation law, mineral law, the legislation relating to township establishment in all the provinces as well as all the legislation relating to all the forms of land tenure in this complex country, to name but a few examples of the laws that affect property. I’m not too adamant about this point but some of us, myself included, may be a tad over- confident or even a bit arrogant or at worst, simply too ignorant , when we refer to ourselves as property lawyers.

We find ourselves in an interesting period in our history – in a post-modern world where everything seems to be in flux with the world order, as we knew it, under threat by a host of new forces. Some of us may feel that the changes that are taking place may not necessarily improve the status quo. We may even feel slightly adrift and a little confused.

The same applies to the conveyancing environment here in South Africa.  Factors that contribute to the undeniable angst that is slowly building up in the collective conveyancing psyche are, inter alia, the following:

1.  The Legal Practice Bill and how its eventual implementation will affect our profession;
2. The rulings of the Competition Commission with regard to-
   • The possible abolition of the reservation of conveyancing for conveyancers only;
   • The possibility of doing away with our conveyancing and sectional title fee guidelines;
   • The revision of our Rules of Conduct relating to touting and advertising.
3. The proposed new Deeds Registries Act which is designed to facilitate the implementation of electronic deeds registration and which is bound to create a new conveyancing environment.
4. Well-intentioned but badly drafted new Company, Consumer and Environmental legislation that may  possibly (dare I say probably?) rather complicate  than clarify the legal environment within which we as conveyancers operate.

Compounding the problem, is the sad and undeniable escalation of corruption in our society – in both the public and private sectors.  Add to this the ominous deterioration of the service which administrative bodies, such a substantial number of our local authorities, are supposed to render.  (I’m giving only one example – I’m tempted to add to the list of malfunctioning government bodies and agencies)  These developments make it ever more difficult for conveyancers to render speedy and satisfactory service to their clients. We are witnessing the creation of an environment wherein it becomes increasingly tempting to achieve the results that our clients still expect from us, by “unconventional means”,  to put it euphemistically.

And then, of course, we find ourselves in this miserable economic slump – especially in the property environment: nearly three years now and still counting………      

2011 must be a record year for the continuous reference in the media, not only in this country, but world-wide, to “unethical conduct”, “failure to adhere to a code of conduct”, “shocking behaviour” and to “corruption”. On the positive side, the story of Anna Hazare in India is an uplifting one – going on a hunger strike to compel his government to introduce anti-corruption legislation!  On the overwhelmingly negative side, the sad saga in the British press, the very cradle of one of the main guardians of a true democracy, namely a free press, the callous behaviour of so many American and European banks that nearly destroyed the Western economies and the shenanigans in our own country that seem to escalate, ( to quote but only a few examples), bear testimony to a sad state of affairs.

 The importance of our profession - the conveyancing profession - is not always understood and appreciated. Hernando de Soto’s classic “The Mystery of Capital” is a true eye-opener. He illustrates convincingly why countries without a sound land registration system flounder and are unable to generate sufficient capital to create wealth and a solid middle class. We are the key players in the land registration process.  Due to the important role that we play in our country’s economy and prosperity, I believe that it is time to take stock of our profession.  At the outset, I want to make it clear that in my view, thanks to the honest, hard and diligent work by so many of us every day, our profession is in essence a healthy one.  There is however no reason to be smug. I believe that our responsibilities are bound to increase notwithstanding the ever present voices that proclaim that our so-called monopoly should be terminated. To put it simply: We are under threat. How should we combat this threat? I certainly do not have the answers but would nevertheless like to share a few thoughts with you.

After 42 years in practice, I truly believe that the only way to secure our future is to ensure that we as a profession and as individuals, preserve our integrity. Let us make every effort to give to the South African public what it craves above all: uncompromised integrity. Although it may well be impossible to achieve it 100% successfully, we must resolve to strive towards that end. We must always remember that ours is an enduring profession because of the very fact that by far the greater majority of us embraced, and still embrace, the simple truth that integrity is the hallmark of a professional person and above all, of lawyers. I intentionally say “and above all, of lawyers” as it is, in the last analysis, our principle task to uphold the law and the constitution. If we were to falter, our society will find itself in great trouble. We lawyers, as the ultimate guardians of the law and the constitution, must simply set the example in this country. If we fail in this crucial duty, who will be left to do so?

When we say that lawyers must uphold the law and the constitution, we must not under-estimate the crucial role of possibly the least glamorous of lawyers, namely the conveyancers. Our integrity is sine qua non for the integrity of our land registration system and a sound land registration is in turn sine qua non for a vibrant and flourishing economy. The enormity of the property industry and our key role in its successful operation is not fully understood. Although we find ourselves in a property slump, the projected figures of the Deeds Office for the 2011/12 financial year boggle the mind: 310 276 transfers with an estimated monetary value of R247 000 000 000, 00 and 630 260 bonds with an estimated monetary value of R263 000 000 000! These figures are conservative and also relate to a rather dismal year. In good years, these figures are of course much, much higher.

(Click here to see estimated registrations for 2011/2012 with estimated values)

  We conveyancers should in my view really do more to promote ourselves as a profession.  As Government does not guarantee security of title and as title insurance (which is expensive) is still unknown in this country, the security of title which we still enjoy can to a large extent be ascribed to our professional expertise and integrity. Does the public, the Government and big business realize this? I rather doubt it.

We do sometimes feel overwhelmed in this complex society of ours that is still in the throes of change. How do people react in such an environment? It would appear that there are three kinds of reaction, these being –

1. If you can’t beat them, join them. In a society that seems to gyrate towards graft and corruption, this would certainly be the worst of all possible options: a total and irreversible abdication from the best of our legal heritage;
2. Withdrawal. Leave me alone and I’ll leave you alone. I’m happy in my own little world and to hell with the big bad world out there. This option is in my view nearly as pathetic as the first one;
3. Be pro-active : Get involved and contribute in a positive way. How? Make every effort to maintain and grow our own as well as our profession’s integrity. I firmly believe that by doing so, we will make a substantial contribution towards creating a stable and orderly and therefore a more peaceful and happy society.

Integrity.  What does it mean? The word comes from the Latin “integer” which means ‘whole’, ‘complete’, ’perfect’.

The Shorter Oxford English Dictionary: Integrity – Soundness of moral principle; the character of uncorrupted  virtue;  uprightness;  honesty;  sincerity;  an unimpaired or uncorrupted state.

The Reader’s Digest Universal Dictionary: Integrity – Strict adherence to a code of moral values;  complete sincerity or honesty.

Reference is made in these definitions to “Soundness of moral principle” and “Strict adherence to a code of moral values”

Now “Ethics” is defined in The Shorter Oxford Dictionary as the “science of morals”, “moral principles or code” and “Ethical” as “relating to morals” and “morally correct”.

I therefore submit that especially in the legal environment “integrity” is the foundation on which “ethics” or an “ethical code” and more specifically “legal ethics” rests and must rest.

When we talk of “morality” or “morals” as the bedrock of ethics, we are confronted with post-modernist philosophy which argues that there are no absolute rights or wrongs and that all ethical issues are therefore relative. Einstein, the founder of the Theory of Relativity, was greatly perturbed by this development and vehemently insisted until his death, that his Theory of Relativity related to Physics only and certainly not to the humanities and especially to moral values.

The problem is compounded in South Africa, where some allege that moral values cannot be shared by all, due to the diversity of cultures that flourish within our borders. The question is therefore, whether the sense of right and wrong is an intrinsic quality of being human or a consequence of cultural traditions.  Some people maintain that cultures have such widely differing norms for behaviour that shared moral principles or a universal ethical code is unfounded. C.S. Lewis, a student of many cultures states: “If a man will go into a library and spend a few days with the “Encyclopaedia of Religion and Ethics”, he will soon discover the massive unanimity of the practical reason of man. From the Babylonian Hymn to Samos, from the Laws of Manu, the Book of the Dead, the Analects, the Stoics, the Platonists, from Australian aborigines and Redskins, he will collect the same triumphantly monotonous denunciations of oppression, murder, treachery and falsehood; the same injunctions of kindness to the aged, the young and the weak, of impartiality and honesty”.

 I maintain and stand by what was professed at the National Conference on Ethics in the Legal Profession held at the University of Pretoria in July 1997: Values of integrity, mutual respect and fairness are universal and timeless.

The realities of the conveyancing environment make the practical application of these lofty principles rather problematical, to put it mildly. The problem that we face is that so many of us want a clear-cut answer to every possible ethical problem. The rules of conduct of our law societies simply cannot provide for every possible contingency. Fact of the matter is that it is impossible to codify integrity. More than mere compliance with our rules of conduct is expected from us by the public in both the public and private sectors as well as our colleagues.  In the last analysis these rules of conduct merely serve as guidelines as to how we should conduct ourselves. Ethics is not about technical compliance with a set of rules which can be written down by a Law Society. To that extent the rules of our Law Societies are certainly important and helpful. But ethics is more than that:  It is in the words of Bob Tucker, about adhering to a fundamental value system of which integrity, mutual respect and fairness are the foundation stones. Adherence or non-adherence to these principles will determine whether we as a nation and especially as a profession, move towards order and prosperity or towards chaos and poverty. The practical guideline that can followed  in an attempt to achieve this, is a simple one. It is also one that I strongly recommend as I believe that it enjoys the support of Buddhists, Hindus, Muslims, Christians, agnostics and atheists:

“Do unto others as you would have them do unto you”.  

 Permit me to give you but one example of what I’m trying to convey here: To forge documents can never be justified. Never! Not only would such conduct be unethical, it is also criminal. Did I say “Never”? Had a well-known Pretoria practitioner who passed away earlier this year been present here to-day, he may well have challenged me on this point. His name was Jaap van Proosdij. This name is carved in the Wall of Remembrance at Yad Vashem near Jerusalem for posterity to honour and revere. Why? He forged documents that deceived the Gestapo. You see, he practised as an Advocaat in the Netherlands during World War II. He forged documents to prove that Jews – in the end more than 250 of them, converted to Christianity. He could create the most marvellous baptismal certificates. These brillianly forged documents were accepted by the Gestapo as a result of which these Jews were not sent to Westerbroek. A life-saving step as Westerbroek was the camp from which Dutch Jews were sent to Auschwitz. Small wonder that a Jewish gentleman who was only three years old when Jaap forged his baptismal certificate, came all the way from Israel to attend his funeral in Pretoria earlier this year – as did many members of the Jewish community. When the “Washington Post” contacted him for his story of heroism – a veritable Dutch Oscar Schindler- he flatly refused to be drawn in. Jaap simply said “To call me a hero is a devaluation of human values. What one does out of common decency should not be called heroism”.

In T.S. Eliot’s verse drama “Murder in the Cathedral” the poet says:

“The last temptation is the greatest treason:

  To do the right deed for the wrong reason”

Jaap van Proosdij got it right – he did the wrong deed for the right reason.

The circumstances were of course exceptional : World War II and the Gestapo. It is a heaven and an earth removed from the criminally punishable action of forging documents in order to expedite a transfer in order to save a client from losing substantial interest losses.

I make no apology for beginning to sound more like a philosopher rather than a practical hands-on lawyer. I fully appreciate that most of you are practising lawyers with little time for philosophical discourse.  All of us are rather inclined to agree with the aphorism,

“The thoughts of the philosophers are like the stars: lofty, but they shed little light”.

In all fairness it should be mentioned that this statement, like many aphorisms or maxims, contains part of the truth only: for it is also the stars which are the source of that amazing equilibrium which keeps the entire universe in balance and without which there would be instant and total destruction.

Back to mother earth: how to be practical about the matter? In the early nineties many conveyancers expressed concern about a perceived deterioration of ethical standards. The Law Society of South Africa in 1996, with the assistance of the able Arno Botha (the then Director of Professional Affairs of the LSSA), was persuaded to publish and distribute a questionnaire in order to sound out the views of colleagues country-wide on a number of issues that vexed  practitioners at the time.

 To our surprise, more than 800 practitioners responded thereto.   It made for interesting reading! It clearly indicated that there was no consensus on quite a number of issues at the time.  Korbitec and I with the assistance of John de Villiers of GhostDigest, decided to pose the self-same questions to conveyancers yet again this year in order to see how the attitude and mores of practitioners may have changed since 1996, i.e. 15 years down the line. Again, a surprising number of practitioners responded: altogether 526!

 I find the results most encouraging. It would appear that we are not slipping back and that we are holding the line. What I find encouraging is that a hardening of our resolve to do the right thing in our professional lives, can be detected from your response to the survey. What I find disturbing is that we seem to have lost some faith in the ability of our Law Societies to curb unprofessional conduct. We may be a bit unfair in this regard as it is my impression that the Law Societies have been more pro-active in their efforts to protect our profession’s integrity during the first decade of this century as opposed to the last decade of the previous century.  Let’s compare the 1996 results with those of 2011:

( Click here to see the twelve questions with graphs showing both the 1996 and 2011 results)      

A comparison between the 1996 and 2011 surveys seems to justify the conclusion that conveyancers now regard their good name and reputation embedded in a solid ethical foundation, to be of even more importance than in 1996.

It is not for me to suggest how the questions should be answered.  I propose that we rather test these questions against the timeless principles referred to by Mr Justice Kirk-Cohen in Law Society, Transvaal v Matthews 1989 (4) SA 389 (T), a leading case dealing with attorneys’ and more in particular conveyancers’ misconduct. The Court said (see p.395 F):

“I refer next to the duty of an attorney in general. The attorney is a person from whom the highest standards are exacted by the profession and this Court. If an attorney wishes to digress from that standard he may do so but he must then first cast aside his profession by resigning and then pursue his chosen course. He cannot serve two masters. In this regard the standards are admirably dealt with in the founding affidavit as follows:

       ‘An attorney is a professional man whose independence and freedom in the conduct of his practice are recognized and preserved. Within the limits of the law and the rules of professional conduct an attorney conducts, and in fact should so conduct, his practice with a high degree of independence. The profession itself is not a mere calling or occupation by which a person earns his living. An attorney is a member of a learned, respected and honourable profession and, by entering it, he pledges himself with total and unquestionable integrity to society at large, to the courts and to the profession…only the very highest standard of conduct and repute and good faith are consistent with membership of the profession which can indeed only function effectively if it inspires the unconditional confidence and trust of the public. The image and standing of the profession are judged by the conduct and reputation of all its members and, to maintain this confidence and trust, all members of the profession must exhibit the qualities set out above at all times.

     The attorneys profession can only fulfil its obligations to the community and comply with its role in the administration of justice in the land if it inspires and maintains the unconditional confidence of the community and if its members devote their absolute integrity to the conduct of their profession and to the fulfilment of all the requirements demanded of the profession and its members.

     The integrity of an attorney should inter alia manifest itself in a situation where he must prefer the interests of his client above his own. It is required of an attorney that he observes scrupulously, and complies with, the provisions of the Attorneys Act and the rules.’

On p.396 F of the report, the Court goes on to say:

The relationship between an attorney and his client was considered and discussed in Goodricke & Son v Auto-Protection Insurance Co Ltd (In liquidation) 1967(2) SA 501 (W). The Court referred with approval to the following statement by Van Zyl in his work Judicial Practice of South Africa 4^th ed:

    ‘The law exacts from an attorney uberrima fides – that is, the highest possible degree of good faith. He must manifest in all business matters an inflexible regard to truth, there must be a vigorous accuracy in minutiae, a high sense of honour and incorruptible integrity; he must serve his client faithfully and diligently…..’

To these authorities I add only the words of the late Mr Justice Davis in the foreword to the first edition of Herbstein and Van Winsen, The Civil Practice of the Superior Courts in South Africa(Introduction at vi):

      ‘The precepts of the law are these says Justinian at the beginning of the Institutes, “to live honourably, to injure no one and to give everyone his due”. It is obviously impossible for anyone, who is not himself prepared at least to try to order his life in accordance with these precepts, to make even a pretence of practising the law’.”  

 Now is not the time to lose heart. Now is the time to strengthen our resolve to maintain the integrity and dignity of our profession. I believe that the time is ripe to grasp the opportunity to do so as this is the best way to secure the future of our profession.  We must do so not only for our own sake but also for the sake of the South African public. We will not only discover friends and allies we never realized we had but will also make new friends and allies. Believe me, we need those!

With apology to T V Bulpin (The Ivory Trial), I would like to conclude as follows:

Conveyancer, you who slave away every day of your working life with such dedication and diligence, be not afraid.  Truly it is you who play such an important role in upholding the integrity of our treasured land registration system. Is there not appreciation for your efforts in maintaining  order and stability in this important field of the law? Be careful in the conveyancing forest. Tread gently on its paths. Whenever your trail, (whether in paper or electronic format), is examined, make sure that it is unblemished and pure. Be mindful of the truth that conveyancing is not a fast track to the good life but rather a way of living a good life. Remember these conditions and you will happily survive in this profession till your hair is grey and you grow wise and maybe even quite prosperous.

Gustav Radloff

August 2011