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[2017] ZAGPJHC 376
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Ex Parte Tlotlego (2017/34672) [2017] ZAGPJHC 376 (8 December 2017)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE
NO: 2017/34672
8
December 2017
Reportable
Of
interest to other judges
Revised.
8
December 2017
In the
ex
parte
application of:
TSAGAE
TLOTLEGO
Applicant
JUDGMENT
VICTOR,
J
:
[1]
My
brother Mangena AJ and I admitted Adv. Tlotlego Tsagae as an
advocate. Advocate G. Olwagen-Meyer of the Johannesburg Bar requested
this court to give reasons.
[2]
One of the difficulties leading up to this matter resulted in Adv.,
Tsagae
Tlotlego
having to amplify her application
as
she unable to produce her degree certificate as she had not made
payment of her fees to the University and they would not issue
the
necessary degree certificate.
[3]
There are many law graduates who experience financial difficulty in
paying their university fees resulting in their not being
awarded the
LLB degree certificates necessary for admission.
[4]
The
Admission of Advocates Act 74 of 1964
provides as follows:
“
3
Admission
of persons to practise as advocates
(1)
Subject
to the provisions of any other law, any division shall admit to
practise and authorize to be enrolled as an advocate any
person who
upon application made by him satisfies the court-
(a)
that he is over the age of twenty-one years and is a fit and proper
person to be so admitted and authorized;
(b)
that he is duly qualified;
(c)
that he is a South African citizen or that he has been lawfully
admitted to the Republic for permanent residence therein and is
ordinarily resident in the Republic;
(d)
…;
(2)
The
following persons shall for the purposes of paragraph
(b)
of subsection (1) be deemed to be duly qualified, namely:
(a)
Any person who-
(i)
(aa)
has satisfied all the requirements for the degree of
baccalaureus
legum
of any
university in the Republic after completing a period of study of not
less than four years for that degree; or
[Item
(aa)
substituted by
s. 1
of
Act 78 of 1997.]
(bb)
after he or she has satisfied all the requirements for the degree of
bachelor other than the degree of
baccalaureus
legum
, of any
university in the Republic or after he or she has been admitted to
the status of any such degree by any such university,
has satisfied
all the requirements for the degree of
baccalaureus
legum
of any such
university after completing a period of study for such degrees of not
less than five years in the aggregate; or’
[5] The above
provision does not expressly state that a degree certificate must be
handed to court but of course that would be the
best evidence. The
practice has been to insist on an original degree certificate and in
its absence proof of a payment proposal
with the University to show
that provision has been made for the payment of fees. The lack of a
degree certificate has been somewhat
ameliorated by the Practice
Manual of the Gauteng Provincial Division, Pretoria and the Gauteng
Local Division, Johannesburg. Provision
is made that where a degree
certificate evidencing that a LLB degree certificate is absent due to
failure to pay the tuition fee,
an applicant for admission as an
advocate must provide proof of a payment arrangement entered into
with the university to effect
payment of outstanding amounts.
‘
A
copy of a degree certificate or other documentary proof should be
attached if the applicant is not in possession of the required
degree
certificate due to his failure to pay tuition fees. This must
be explained and proof of any arrangement entered into
with the
institution to effect payment of the outstanding amount must be
provided. See Practice Manual of GNP page 80.
’
This is the same approach in
Ex
Parte Haddad
1954 (2) SA 568
(T). See also
Ex Parte Feetha
1954 (2) SA 468
(T).
[6] Adv.
Tlotlego Tsagae had exhausted all efforts and avenues to raise the
required funds to pay off outstanding fees so that the
degree could
be conferred upon her. She could not find gainful employment
and approached Adv. Semenya SC of Pitjie Chambers
of the Johannesburg
Bar requesting financial assistance. Pitjie Chambers agreed to
pay the outstanding university fee as
part of their transformation
and social initiative projects. I am also aware that Adv.
Epstein SC of Maisels Chambers has
also introduced a similar
initiative. There may be other similar initiatives at the Bar. These
initiatives are laudable and in
the true spirit and moral convictions
of the members of the Bar.
What
happens to a law graduate who is not a beneficiary of a
transformation or social programme?
[7]
The question for determination is what happens to those law graduates
who have passed and who may not benefit from the transformation
and
social initiatives of the Bar. Like Adv. Tsagae there are law
graduates who have not been able to make arrangements for payment
of
fees until assisted by Pitjie Chambers. Those law graduates may not
be fortunate enough to be benefit from the Bar’s transformation
and social initiatives.
[8]
Their promise of hope to enter the legal profession is dashed. It
would seem therefore that our courts must recognise that an
individual graduate’s poverty may result in grave prejudice at
a personal level and prevent entry in the labour market in
their
chosen profession. The dignity of the legal graduate is impaired and
results in a situation where the poverty of the individual
results in
a form of culpability of that individual or a form of blameworthiness
because the person is too poor to pay. In my view
this results in
unequal treatment of a student too poor to pay and amounts to a form
of victimising those graduates who are too
poor to pay.
[9]
It calls into question whether our court directives to insist that
the applicant must have made satisfactory arrangements to
pay their
outstanding fees with the university may result in the problems
referred to above. Can the admission of a law graduate
to the
profession be conditional upon our courts acting as an overseer of
the debtor/ creditor relationship between student and
the
University?
[10]
In answering this question it is necessary to consider the
development of our constitutional jurisprudence which is aimed at
solving practical problems and bringing about solutions that are fair
and just. John Finnis in an
article
‘
The
Authority of Law in the predicament of contemporary social theory’
[1]
raises
the argument that the ‘effort of legal theory should be to
discern principles for solving practical problems’
...
based on ‘principles that are fair reasonable, efficient..’
He opines that it is ‘preferable that legal
theory is not to
ignore lack of consensus about solutions to practical problems’.
If the lack of consensus between university
and student re payment of
fees is to result in a refusal to admit a law graduate by reason of
he or she not being able to reach
consensus with the university on a
payment plan then the law still has to look at reaching a solution to
this practical problem.
The answer is not to punish, prejudice
or regard the student who is in a state of poverty as blameworthy.
[11] The valuable
features of a legal system must be aimed at humans flourishing in the
legal order. It must be fair and not static
or divorced from the
political reality of the day. The inability of students to pay
tuition fees is the reality of our times
and current circumstances
[12] Our law must be flexible not
rigid when confronting the problems of the day which in this case is
the poverty of students not
being able to enter the legal profession
unless as the practice directive suggests they have made payment
arrangements with the
university. In other words the courts become a
role player/ gatekeeper in the debtor/creditor relationship between
student and
University.
Flexibility of
the Law
[13] The central
question is whether the law should have sufficient flexibility
without compromising its basic norms to reach a
solution to this
problem. It can never be that the courts must act as a
gatekeeper against the interests of a student in
poverty.
[14]
A certain norm or category becomes fully legal, i.e. truly binding
for the community, only if it fulfils certain requirements
determined
by this external environment. These can be requirements such as
“goodness” or “justice,” and
also those of
“efficiency” or “fidelity.”
[2]
The inability of the law graduate in the context of poverty is a fact
that acquires a “legal validity,” or in other
words, the
context of the student in poverty is transformed into legally
relevant consideration. Gatekeeping of students in poverty
cannot be
a basic norm which must remain as a practice in our courts. Debtor
and creditor relationships are between the student
and the University
and not the basis for the courts to keep law graduates out of their
profession. There are sufficient procedures
in place for a creditor
to recover moneys owed to it. Keeping a law graduate out of the legal
profession is not an appropriate
legal tool to satisfy the debt
collections.
[15] It is for
these reasons that I conclude that the requirement as set out in the
practice manual of an applicant having to prove
a payment arrangement
with the University is unnecessary for the reasons stated.
[16] Applicants to the profession of
advocates shall from henceforth only satisfy the provisions s 3 of
Admission of Advocates Act 74 of 1964
.
________________________________________
M VICTOR
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
I agree:
__________________________________________
MANGENA
ACTING JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
COUNSEL FOR THE
APPLICANT
ADV G OLWAGEN-MEYER
[1]
1
Notre Dame J.L. Ethics & Pub. Pol'y 115 (1984-1985
)
[2]
See Finis above