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[2010] ZASCA 175
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The Law Society of the Northern Provinces v Mahon (86/10) [2010] ZASCA 175; 2011 (2) SA 441 (SCA) ; [2011] 2 All SA 481 (SCA) (2 December 2010)
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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 86/10
In
the matter between:
THE LAW SOCIETY OF THE NORTHERN
PROVINCES
...............................
Appellant
v
ROCHELLE MAHON
...................................................................................
Respondent
Neutral citation:
The Law
Society of the Northern Provinces v Mahon
(86/2010)
[2010] ZASCA
175
(2 December 2010).
Coram:
Lewis, Cachalia, Leach,
Tshiqi JJA and Ebrahim AJA
Heard:
23 November 2010
Delivered: 2 December 2010
Summary:
Section 13(2) of the
Attorneys Act 53 of 1979 permits a court to condone irregular service
by a candidate attorney only if he or
she has entered into a valid
agreement of articles – constitutional law –
interpretation – the concepts of ‘fairness’
and
‘justice’ are not freestanding requirements against which
the constitutionality of a statute, its interpretation
or its
application to the particular facts of a case, may be tested –
whether a high court is bound by this court’s
pre-constitutional interpretation of a statute.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
North Gauteng
High Court, Pretoria (Bertelsmann and Rabie JJ sitting as court of
first instance).
The following order is made:
1. The appeal is upheld.
2. The order of the court a quo
admitting and enrolling the respondent as an attorney of the high
court is set aside and the following
order is substituted in its
place:
‘
2.1 The
applicant’s application for her admission and enrolment as an
attorney of the high court is postponed sine die.
2.2 Her application for condonation in
terms of s 13(2) of the Attorneys Act 53 of 1979 for the period
served from 3 January 2006
to 28 May 2006 before the conclusion
of her articles of clerkship on 28 May 2006 is dismissed.
2.3 Upon successful completion of her
articles of clerkship for a further period of at least three (3)
months, either with her former
principal or any other attorney duly
qualified to act as her principal, alternatively, upon successful
completion of a period of
at least three (3) months of community
service as envisaged by s 2(1A)(b) of the Attorneys Act, the
applicant may apply to court
on the same papers, duly supplemented,
for an order in terms of s 11(2) or, depending on the circumstances,
any other applicable
provision in terms of the Attorneys Act for her
admission as an attorney of the high court.
2.4. The further period of three (3)
months of articles of clerkship is to be served or community service
to be performed within
a period of twenty four (24) months from the
date of this order.
2.5. The order granted by the court a
quo condoning the applicant’s period of absence of leave for 17
days in excess of the
30 days allowed during any year of her articles
of clerkship is not affected by this order.
2.6. The applicant is ordered to
surrender her certificate of enrolment as an attorney of the high
court to the respondent forthwith.’
________________________________________________________________
JUDGMENT
________________________________________________________________
CACHALIA JA (Lewis, Leach, Tshiqi JJA
and Ebrahim AJA concurring):
[1] This appeal,
against a judgment of the North Gauteng High Court (Bertelsmann J,
Rabie J concurring),
1
with its leave,
concerns the proper interpretation of s 13(2) of the Attorneys Act 53
of 1979. The facts of the case are these.
[2] In September
2005 the respondent, Ms Rochelle Mahon, accepted an offer of
employment from Attorneys D M Kisch Inc. Her contract
was signed on
27 December. It described her position as that of a ‘Candidate
Trademark Attorney’, and took effect as
from 3 January 2006. I
shall refer to this agreement as the ‘first agreement’.
In addition to the usual provisions
relating to salary, working
hours, leave, membership of a provident fund and medical aid, her
agreement also provided, uncommonly,
for a three-month probationary
period and an undertaking by the employer to sign her articles of
clerkship agreement (the clerkship
agreement) only if she
successfully completed her probation phase.
2
However, when the
period ended her principal, Mr A K Van der Merwe, deferred the
conclusion of the agreement until she had obtained
an outstanding
credit (Criminal Law) for her LLB degree so that they could enter
into an agreement for a two-year period, which
is provided for in s
2(1) of the Act.
3
She passed her
Criminal Law examination in April 2006. The clerkship agreement was
then signed on 28 May 2006, duly lodged with
the Law Society of the
Northern Provinces on 27 July 2006, and registered in good time as s
5 of the Act requires.
[3] On 4 February 2008, Ms Mahon
accepted another employment offer as a legal adviser for a bank,
where she began working on 5 March
2008. Her employment with D M
Kisch came to an end on 28 February 2008, approximately two years and
two months after she had started
working there. The duration of her
service under her clerkship agreement was, however, for three months
less than the two year
period that s 2(1)(a) of the Act requires for
admission as an attorney. So, to overcome this problem, and acting on
the premise
that the period between 3 January 2006 to 28 May 2006 was
‘irregular service’ as a ‘candidate attorney’
as contemplated by s 13(2), she applied to the high court to condone
this period of service as ‘substantially equivalent
to regular
service’ the effect of which would, if granted, exempt her from
having to serve the full period of two years in
terms of her
clerkship agreement in order to qualify for admission as an attorney.
[4] The Law Society of the Northern
Provinces, the appellant in these proceedings, opposed her
application. It did so on the ground
that the time spent before Ms
Mahon entered into her clerkship agreement was ‘not served
regularly as a candidate attorney’
within the meaning of s
13(2), and therefore, was not capable of being condoned. The high
court, however, granted Ms Mahon’s
application. The Law Society
appeals against that order.
[5] On behalf of Ms Mahon it was
contended that the first agreement was, in substance, one entered
into in accordance with the Act
and, therefore, that condonation was
not required. Put another way, the argument was that there was
‘substantial compliance’
with the requirements of the
Act. In the alternative, and if we were to hold that the first
agreement was not one that the Act
contemplates then, it was
contended, her period of employment under it was nevertheless
‘irregular service’ that was
capable of being condoned.
Finally, if the first two submissions failed, it was submitted that
the interpretation of s 13(2) raises
a constitutional issue, which is
that if the section is interpreted literally, the effect will be to
violate Ms Mahon’s constitutional
right to choose and practise
a profession of her choice under s 22 of the Constitution. The court
below upheld this submission.
[6] I turn to consider the proper
construction of s 13(2). There was no challenge to the
constitutionality of the section, a point
I will revert to later in
this judgment. To interpret the section requires a consideration of
its language in the light of its
context and purpose. The section
provides:
‘
If
any person has not served regularly as a candidate attorney, the
court, if satisfied that such irregular service was occasioned
by
sufficient cause, that such service is substantially equivalent to
regular service, and that the society concerned has had due
notice of
the application, may permit such person, on such conditions as it may
deem fit, to apply for admission as an attorney
as if he had served
regularly under articles or a contract of service.’
[7] I commence with the language. The
words ‘regular service’ and ‘irregular service’
in the section both
refer to service ‘as a candidate attorney’.
Section 1 defines a ‘candidate attorney’ as ‘any
person
bound to serve under articles of clerkship . . .’. And,
‘articles of clerkship’, also defined in s 1, means ‘any
contract in writing under which any person is bound to serve an
attorney for a specified period in accordance with this Act’.
Plainly, it is only the irregular service of a candidate attorney (as
defined), which may be normalised – not irregular service
generally. If there was the slightest doubt that this is so, it is
dispelled by the signed Afrikaans text, which can hardly be
clearer.
It reads:
‘
Indien
iemand nie gereeld diens as kandidaat-prokureur verrig het nie . . .
dat daar gegronde rede vir die ongereelde diens was,
dat daardie
diens in hoofsaak gelykstaande met gereelde diens is . . . .’
[8] This
construction of s 13(2) is buttressed by its statutory context. In
this regard Chapter 1 of the Act, which creates the
regulatory regime
for candidate attorneys, is relevant. Section 2(1) prescribes the
duration of service under articles of clerkship
that must be served
before a person is eligible for admission as an attorney. The period
to be served depends on the qualification
obtained. Where a person
has satisfied the requirements for the
baccalaureus
legum
(LLB)
degree, the period
prescribed is two years.
4
In the case of a
person who does not have an LLB qualification, but does have another
degree, the period is three years,
5
and for a person
who has only passed the matriculation examination, as in Ms Mahon’s
case, five years.
6
In other instances,
none of which bear on this matter, the period may be shortened to a
year
7
or the person may
be exempt from service under articles of clerkship.
8
The Act contains no
other provision to accommodate a shorter period for a clerkship
agreement. Before concluding a clerkship agreement
an aspirant
candidate attorney must submit proof of his or her qualifications to
the Law Society.
9
And, once
concluded, it must be lodged with the Law Society within two months
to be registered.
10
[9] The termination
of a clerkship agreement is dealt with in s 11. It provides that if a
clerkship agreement is cancelled or abandoned
before completion, a
court may add the period served under that agreement to any other
period that the candidate attorney has served.
11
The purpose of the
section is to ensure that the requirement that clerkship agreements
comply with the period requirements in s
2(1) is made easy.
[10] Section 13(3) gives further
contextual assistance for the choice of language employed in s 13(2).
It provides that where a
candidate attorney has satisfied the degree
requirements in s 2(1), a period served by the candidate attorney
under a clerkship
agreement before achieving this shall for purposes
of admission as an attorney be regarded as having been served after
the qualification
was obtained. The effect of this section is that a
candidate attorney may be credited for a period of articles served
before satisfying
the degree requirements, and therefore suffers no
prejudice, because his or her initial clerkship agreement was
concluded for a
longer period. I will revert to this point later in
the judgment.
[11] The provisions of chapter 1, with
reference to articles of clerkship, must be read with rule 58 of the
rules of the Law Society,
which requires an agreement to
substantially comply with the form in the Second Schedule to the
rules. The rule gives the Law Society
the right to reject any
agreement, submitted to it for registration, which does not comply
with the Act, the rules or has other
improper or objectionable
provisions.
[12] What emerges
from this analysis is that the legislature intended the terms of the
clerkship agreement to be the bedrock of
the regulatory regime
governing candidate attorneys. But it recognized that the strict
application of this regime may sometimes
cause hardship. It thus gave
the high court the authority to condone, on sufficient grounds, the
irregular service of a candidate
attorney. What the legislature had
in mind by ‘irregular service’ were ‘breaks in
service either through accident,
as in the case of illness of the
clerk, or through a
bona
fide
mistake,
or through other sufficient cause’.
12
But, it is plain
that the high court’s authority to excuse any irregular service
is conditional upon the candidate attorney
having concluded a
clerkship agreement in accordance with the Act – in other words
a valid contract of articles.
[13] Although the
section has been amended over the years it has been interpreted for
well over a century to convey the same idea:
‘that no service
could be taken into computation as qualifying for admission, except
service subsequent to the date of a
written contract’.
13
In addition, a
string of cases from provincial divisions have said emphatically that
service of articles can only be service of
articles under a valid
contract and that a court may only consider condoning any irregular
service once the validity of the contract
has been established.
14
In
Ex
Parte Singer;
Law
Society, Transvaal, Intervening
,
15
this court gave its
imprimatur to this interpretation.
[14] This brings me to Ms Mahon’s
first point – that the first agreement complied, or
substantially complied, with the
Act. As I have mentioned a contract
of ‘articles of clerkship’ means ‘any contract in
writing under which a person
is bound to serve an attorney for a
specified period in accordance with the Act’. The agreement
described her position as
a ‘Candidate Trademark Attorney’.
But beyond that it bore no resemblance to an agreement that the Act
envisages. It
did not specify the duration of service as s 2
requires; nor did it conform in any material respect to the form in
the Second Schedule
to the rules. Most significantly, it provided for
a three-month probationary period and only then, after the
‘successful
completion of the probationary period’, would
the clerkship agreement be signed. So it is clear that the first
agreement
anticipated a proper agreement being signed later –
and this is what happened. The parties did not intend the first
agreement
to be a clerkship agreement and it clearly was not. There
is therefore no merit in the submission that the first agreement
complied
substantially or at all with the provisions of the Act.
[15] That ought to
have been the end of the matter. However, counsel for Ms Mahon
pressed the argument that s 13(2) is ambiguous,
despite the fact that
the interpretation of the section appears to have been settled. The
ambiguity, he submitted, permitted an
interpretation that would allow
the period of articles served under the first agreement to be treated
as irregular service which
was capable of being condoned. For this
submission he relied on
Ex
Parte Edwards
,
16
a decision of the
Cape Provincial Division (Farlam J, Van Niekerk J concurring). That
court took the view that the words ‘not
served regularly as a
candidate attorney’ were ambiguous, the ambiguity, it said,
arising from the fact that it was not clear
whether the words
governed by the word ‘not’ related only to the words
‘served regularly’ or included the
words ‘as a
candidate attorney’ so that only a candidate attorney who had
entered into a valid contract could apply
for relief under the
section.
17
[16] The court in
Edwards
found support for
its view in the change of wording in s 13(2) from its predecessor, s
19(1) of the Attorneys, Notaries and Conveyancers
Admission Act 23 of
1934. That section read as follows:
'Where
any person articled to an attorney
has not served under such articles
strictly in accordance with the provisions of this Act, the Court,
upon being satisfied that
such irregular service was occasioned by
sufficient cause, and that such service although irregular, is
substantially equivalent
to regular service, and that the law society
concerned has had due notice of the application, may, subject to the
provisions of
clause 6 of the First Schedule, permit such person,
upon such conditions as it may deem fit, to present (if otherwise
qualified)
his petition for admission as an attorney in the same
manner as if the service in question had been regular and in
conformity with
the provisions of this Act.'
(Emphasis added
by the court.)
[17] The court reasoned that the fact
that s 19(1) of the previous Act used the words ‘(w)here any
person articled to an attorney’,
and s 13(2) of the current Act
did not, gave a ‘strong indication’ that Parliament did
not intend s 13(2) to be limited
in its operation to service of
persons already articled.
[18] However, in a
carefully reasoned judgment, the Natal Provincial Division (Howard
JP, Levinsohn J concurring) in
Tshabalala
v Natal Law Society
18
firmly rejected
this reasoning in
Edwards.
It
accepted that the word ‘not’ governs the entire phrase,
but considered that unless one ignored the words ‘as
a
candidate attorney’ the section could not be construed to cover
irregular service by persons other than candidate attorneys,
that is
by persons who have not concluded valid clerkship agreements.
19
And, as I have
explained earlier, because the clerkship agreement lies at the heart
of the admission of persons as attorneys, it
is not possible to
construe the section to refer to irregular service generally. The
reasoning in
Tshabalala
is
in my view correct. For the same reason I do not think that the
change of wording from the 1934 Act to the present one constitutes
sufficient evidence of a change of intention on the legislature’s
part.
20
[19] One more point
must be made about
Edwards.
The
court attempted to distinguish this court’s decision in
Singer
by
holding that there the irregular service was rendered pursuant to
articles that were null and void because the applicant entered
into
them at a time when he was enrolled as an advocate, which
disqualified him from doing so.
21
However, in
Edwards
the
person who served articles was properly qualified to enter into a
clerkship agreement but did not do so through no fault on
her part.
The distinction is one without a difference. In my view it matters
not whether the person was qualified. The real question,
as this
court said in
Singer
,
was whether the
irregular service was capable of producing legal consequences or, put
another way, was capable of being condoned.
And it is only a valid
contract of articles that can produce legal consequences. Had the
court in
Edwards
approached the
issue in this way, which I think it should have in the light of the
ratio in
Singer
,
it would have come to another conclusion. It follows that Ms Mahon’s
reliance on
Edwards
must
founder.
[20] I now turn to
consider the third ground that counsel for Ms Mahon relied upon: that
if s 13(2) is interpreted in the manner
that I have done here, and
the courts have consistently done over many years, it would violate
Ms Mahon’s constitutional
right to choose her profession freely
– a right that s 22 of the Constitution now protects.
22
Counsel for Ms
Mahon found support for his submission in the reasoning of the court
below. For its part the court below, in turn
relied on a decision of
the Cape Provisional Division (Traverso DJP, Hlophe JP concurring) in
Ex
Parte Ndabangaye
.
23
It is, therefore,
necessary to examine
Ndabangaye
more
closely.
[21] The
Ndabangaye
court
was confronted with facts almost identical to those in
Singer
.
The applicant for admission as an attorney had not removed her name
from the roll of advocates at the time she registered her
clerkship
agreement with the Law Society of the Cape of Good Hope. She was thus
precluded from registering her articles by s 12
of the Act.
24
When she discovered
the problem, she successfully applied to court to have her name
removed from the roll of advocates. She then
applied to court to be
admitted as an attorney, and asked the court to condone the fact that
she was still enrolled as an advocate
while doing her articles.
[22] The court
found that there was ‘sufficient cause’, as s 13(2)
contemplates, to condone the applicant’s non-compliance
with s
12 (in contrast to
Singer
,
which decided that the clerkship agreement concluded contrary to s 12
was a nullity incapable of being condoned). It also held
that it was
no longer bound by
Singer
on
two grounds: first, because s 13(2) had been amended since that case
was decided and, secondly, for the reason that it predated
the
Constitution.
25
[23] It is
convenient to dispose of the first ground briefly. When
Singer
was
decided, s 13(2) read:
'If
any person has not served regularly as an articled clerk, the Court,
if satisfied that such irregular service is substantially
equivalent
to regular service, and that the society concerned has had due notice
of the application, may permit such person, on
conditions as it may
deem fit, to apply for admission as an attorney as if he had served
regularly under articles.'
[24] For present
purposes the only relevant difference between the wording then and
now is that in the present Act the phrase ‘was
occasioned by
sufficient cause’ is added to the requirement that the court be
‘satisfied’. I respectfully disagree
that the additional
words change the substance of the section’s meaning. In both
cases the section confers a broad discretion
on the court to condone
‘irregular service’ – in the former case ‘as
an articled clerk’ and in the
latter, ‘as a candidate
attorney’. This discretion can only be exercised if the
prerequisite of a valid contract of
clerkship exists
26
–
a
requirement in both the earlier and the amended section. There was
therefore no proper basis to distinguish
Singer
on
this ground.
[25] I turn to
consider the second ground: that the court in
Ndabangaye
was
not bound by this court’s construction of s 13(2) in
Singer
because,
to use its words, ‘the . . . case preceded the Constitution’.
27
If the court
intended to hold that
Singer
was
not binding on it merely because it was decided before the advent of
the Constitution, I must respectfully disagree with this
proposition
for two reasons: first, there was no direct challenge to the
constitutionality of s 13(2), which means that the court
had to
accept that the section was constitutionally valid, and secondly,
because the section is not ambiguous or otherwise reasonably
capable
of being given any other meaning, it logically could not have been
read in a way which better ‘promote[s] the spirit,
purport and
objects of [s 22 of] the Bill of Rights’. The
Ndabangaye
court
thus ought to have considered itself bound by the decision in
Singer.
28
[26] But, as I have
said, it did not. And, having thus freed itself of the binding force
of this court’s judgment it proceeded
as follows; it accepted
that the applicant had acted contrary to the provisions of s 12 when
she registered her articles while
still being on the roll of
advocates
29
and, by
implication, that her clerkship agreement was therefore invalid on an
ordinary reading of s 13(2).
[27] But having
acknowledged this to be the case, the court confusingly said that the
two sections must be interpreted against the
injunction in s 39(2) of
the Constitution to promote the spirit, purport and objects of s 22
of the Bill of Rights;
30
and also that in
interpreting ss 12 and 13(2) it must be borne in mind that they must
serve a purpose envisaged by s 22 of the Constitution.
In regard to s
12 it observed:
‘
(O)ne
of the reasons why . . . an attorney wishing to become an advocate is
obliged to sever all ties with the attorneys’
branch of the
profession may be to prevent him from using undue influence to
channel work in his direction.’
31
[28] The judge
found, on the facts, that the applicant had attempted to have her
name removed from the roll of advocates but, through
no fault on her
part, the attorneys who she had instructed had not done so. It also
found that she was in no position to channel
work in her direction.
She would thus, said the judge, be denied her constitutional right to
choose her profession freely by not
being admitted to practise as an
attorney if the question whether she had complied with the relevant
sections were approached in
a ‘legalistic’ manner.
32
Furthermore, said
the judge, she could think of no ‘rational reason why an
interpretation should be afforded to s 13(2) of
the Act which will
result in such drastic consequences . . .’. The judge concluded
that ‘the interpretation adopted
in the
Singer
case
was so strictly legalistic that it must, in view of the . . .
provisions of the Constitution and the Bill of Rights and the
underlying aims of fairness and justice be departed from’.
33
Accordingly, she
found ‘sufficient cause’ to condone the irregular service
of the applicant’s contract of articles
of clerkship.
[29] The court
below adopted the reasoning in
Ndabangaye.
It
approached the question whether Ms Mahon’s service should be
regarded as service ‘substantially equivalent to regular
service’ as contemplated by s 13(2) as one to be determined
against the factual background of the matter.
34
It then, as the
court in
Ndabangaye
approached the
issue, said that the stated purposes of the Act included the
protection of the integrity of the profession, the safeguarding
of
the public from unqualified and unscrupulous individuals entering the
profession and also to ensure that candidate attorneys
received
proper training from their employers and were not exploited by them.
35
And, that neither
these purposes, nor any purpose sanctioned by s 22 of the Bill of
Rights, would be served by adopting an ‘unduly
legalistic
approach’ to the interpretation of s 13(2).
36
Instead, said the
judge, the matter had to be approached in a manner that ensures that
‘substantive justice’ is done.
37
It thus concluded,
as did
Ndabangaye
,
that it would be
‘unfair’ on the facts of this case not to recognize Ms
Mahon’s prior service because she had
received ‘appropriate
instruction’ during this period.
38
[30] I have already
indicated that in the absence of any direct constitutional challenge
to s 13(2) under s 36 of the Constitution,
39
or a proper case
that the section was reasonably capable of any other interpretation,
the court in
Ndabangaye
and the court below
were
bound
by
Singer.
It appears,
however, that they both had s 36 in mind when they emphasised that a
statutory provision – in this case s 13(2)
– must serve a
purpose
that the Bill of
Rights sanctions. But by doing so they conflated s 36 of the
Constitution, which deals only with direct challenges
to the
constitutionality of a law (in this case a statute), with s 39(2),
which is concerned only with the interpretation of law
in a manner
that is consistent with the Constitution.
40
More fundamentally,
they erred in considering that the subjective positions of the
applicants for admission as attorneys had any
bearing on how s 13(2)
was to be interpreted.
41
This led both
courts, with respect wrongly, to conclude that a ‘legalistic
interpretation’
42
of s 13(2)
would, in these cases, be contrary to a purpose sanctioned by s 22 of
the Constitution and thus unjustifiably infringe
the applicants’
rights. This brings me to the question of whether fairness and
justice in and of themselves afford constitutional
grounds to impugn
legislation.
[31] The statement
by the court in
Ndabangaye
that fairness and
justice are underlying aims of our constitutional order is
uncontroversial.
43
Most legal systems
would subscribe to these values. Central to the idea of fairness,
writes Amartya Sen, is:
‘
[A]
demand to avoid bias in our evaluations, taking note of the interests
and concerns of others as well, and in particular the
need to avoid
being influenced by our respective vested interests, or by our
personal priorities or eccentricities or prejudices.
It can broadly
be seen as a demand for impartiality.’
44
In a similar vein ‘justice’,
according to Plato, requires us to treat equals equally and unequals
unequally. There are,
however, many theories and conceptions of
justice and the search for any exact idea of justice has escaped
philosophers as it has
judges. It often boils down to what in the
Afrikaans language would be one’s ‘regsgevoel’ –
one’s
personal sense of justice.
[32] But fairness
and justice are inherently malleable concepts and cannot be
freestanding requirements against which to test the
constitutionality
of a statute, its interpretation or its applicability to the facts of
a particular case.
45
Because if they
were, statutes would be declared unconstitutional or applied
differently depending on an individual judge’s
perception of
what is fair or just in a particular case, which is what happened in
the two cases now under consideration. Obviously,
when interpreting
laws judges are assisted by the presumption that the legislature does
not intend to enact laws that produce unfair,
unjust or unreasonable
results.
46
But laws have
general application and their meaning cannot change to accommodate
individuals. A statute, just like the Constitution,
does not mean
whatever we wish it to mean. Cases must be decided on a principled
basis.
47
The statements in
the judgments of
Ndabangaye
and
of the court below that suggest the contrary should consequently not
be followed.
[33] I return to
the instant matter. I have held that Ms Mahon’s first agreement
was not a valid agreement as contemplated
by the Act and for that
reason the period that she served under it was not capable of being
condoned. I should add that it is not
as if the Act did not permit
her to conclude a clerkship agreement that conformed to the Act.
Before obtaining all her credits
for her LLB degree she could have
entered into a five-year contract in terms of s 2(e) and, once she
had completed two years, applied
to court under s 13(3)
48
to permit her to be
enrolled. The court below was understandably concerned that applying
the law in its terms would result in some
hardship to her. This is
because she had already performed functions of a candidate attorney
for a two-year period. Courts should
be compassionate: but legal
questions, as a judge said many years ago, must be resolved without
regard to sentiment or sympathy.
49
[34] Courts should bear in mind too
that certain consequences flow from articles of clerkship and that
these are professionally
important. These include the Law Society’s
supervisory and regulatory function of the work of a candidate
attorney and the
fact that legal privilege is afforded to clients of
an attorney and a candidate attorney. Service other than under valid
articles
of clerkship would undermine these features and could impact
adversely on the public.
[35] There is, however, a matter
arising from this case that requires the attention of the Law
Society. I am not aware of any consistent
practice where attorneys
enter into clerkship agreements, which include a period of probation
as in the instant case. Such contracts,
as the court below correctly
observed, must be discouraged as they are open to abuse.
[36] The Law Society has, at the
request of the court, and in collaboration with Ms Mahon’s
legal representatives, very helpfully
proposed a draft order. That
order will be made an order of court. The Law Society has
appropriately not asked for a costs order
in the event that it is
successful in the appeal. I accordingly make the following order.
1. The appeal is upheld.
2. The order of the court a quo
admitting and enrolling the respondent as an attorney of the high
court is set aside and the following
order is substituted in its
place:
‘
2.1 The
applicant’s application for her admission and enrolment as an
attorney of the high court is postponed sine die.
2.2 Her application for condonation in
terms of s 13(2) of the Attorneys Act 53 of 1979 for the period
served from 3 January 2006
to 28 May 2006 before the conclusion
of her articles of clerkship on 28 May 2006 is dismissed.
2.3 Upon successful completion of her
articles of clerkship for a further period of at least three (3)
months, either with her former
principal or any other attorney duly
qualified to act as her principal, alternatively, upon successful
completion of a period of
at least three (3) months of community
service as envisaged by s 2(1A)(b) of the Attorneys Act, the
applicant may apply to court
on the same papers, duly supplemented,
for an order in terms of s 11(2) or, depending on the circumstances,
any other applicable
provision in terms of the Attorneys Act for her
admission as an attorney of the high court.
2.4. The further period of three (3)
months of articles of clerkship is to be served or community service
to be performed within
a period of twenty four (24) months from the
date of this order.
2.5. The order granted by the court a
quo condoning the applicant’s period of absence of leave for 17
days in excess of the
30 days allowed during any year of her articles
of clerkship is not affected by this order.
2.6. The applicant is ordered to
surrender her certificate of enrolment as an attorney of the high
court to the respondent forthwith.’
_____________
A CACHALIA
JUDGE OF APPEAL
APPEARANCES
APPELLANTS: A T Lamey (Attorney)
Instructed by Rooth & Wessels Inc,
Brooklyn
Naudes, Bloemfontein
RESPONDENT: J E Ferreira
Instructed by Mothle Jooma Sabdia Inc,
Pretoria
Matsepes Inc, Bloemfontein
1
The
judgment is reported as
Ex Parte Mahon
2010 (2) SA 511
(GNP).
2
The
court below stated that the probationary period ‘certainly did
not reflect the applicant’s wishes’ (para
23(k)) and
that she ‘was given little choice . . . and could only accept
her fate’ (para 13). But no such averments
were made in the
papers.
3
The
court below described Mr Van Der Merwe’s decision to delay
signing the clerkship agreement until Ms Mahon had passed
her
Criminal Law exam as a refusal to do so (para 11). This is
inaccurate.
4
Section
2(1)(a) and s 2(1)(aA).
5
Section
2(1)(c).
6
Section
2(1)(e).
7
Section
2(1A).
8
Section
2A.
9
Section
4(b).
10
Section
5.
11
Section
11(2) and s 11(3).
12
Ex
Parte Couzyn
1929 TPD 238
at p 240. This case was decided under
s 21 of Ordinance 1 (Private) of 1905.
13
In
re Berrangé
3 M 458. This case was decided under Rule of
Court 149 in 1837.
14
Ex
Parte Traverso
1977 (1) SA 791
(C) p 793A-D.
This case was decided under s 19(1) of the Attorneys, Notaries and
Conveyancers Admission Act 23 of 1934.
Bosman
v Prokureursorde van Transvaal
1984 (2) SA
633
(T) p 636F-G;
Tshabalala v Natal Law
Society
1996 (4) SA 150
(N) p 152C-G.
15
1984
(2) SA 757(A).
16
1995
(1) SA 451
(C).
17
Ibid
p 454B-D.
18
1996
(4) SA 150
(N).
19
Ibid
p 153F-G.
20
Ibid
p 153G-H.
21
Edwards
above p 455A-D.
22
Section
22 of the Constitution provides: ‘
Freedom
of trade, occupation and profession
Every
citizen has the right to choose their trade, occupation or
profession freely. The practice of a trade, occupation or profession
may be regulated by law.’
23
2004
(3) SA 415
(C).
24
Section
12 provides: ‘
Registration of articles or contract of
service entered into by advocate
Any person admitted to practice
as an advocate shall not be allowed to register articles or a
contract of service in terms of
the provisions of this Act, unless
his name has on his own application been removed from the roll of
advocates.’
25
Ndabangaye
above n 23 para 11.
26
Singer
above p 761H-762A.
27
See
Ndabangaye
above n 23 para 11.
28
There
is some uncertainty whether in the light of the decisions in
Ex
Parte Minister of Safety and Security: In re S v Walters
[2002] ZACC 6
;
2002
(4) SA 613
(CC) and
Afrox v Strydom
2002 (6) SA 21
(SCA) high
courts, when interpreting legislation in accordance with s 39(2) of
the Constitution, are bound by pre-constitutional
decisions of this
court. (See Stuart Woolman and Danie Brand ‘Is there a
Constitution in this courtroom? Constitutional
jurisdiction after
Afrox and Walters
’ (2003) 18
SAPR/PL
49. It is
not necessary to resolve this question in this case.
29
Ndabangaye
above n 23 para 12.
30
Ibid
para 18.
31
Ibid
para 22, citing
In re Rome
1991 (3) SA 291
(A) at 309C.
32
Ibid
paras 23 and 24.
33
Ibid
paras 28 and 29.
34
Ex
parte Mahon
2010 (2) SA 511
(GNP) para 23.
35
Ibid
paras 24 and 25.
36
Ibid
paras 24 and 26.
37
Ibid
para 27.
38
Ibid
para 28.
39
‘
Limitation
of rights
The rights in the Bill
of Rights may be limited only in terms of law of general
application to the extent that the limitation
is reasonable and
justifiable in an open and democratic society based on human
dignity, equality and freedom, taking into
account all relevant
factors, including-
the nature of the
right;
the importance of the
purpose of the limitation;
the nature and extent
of the limitation;
the relation between
the limitation and its purpose; and
less restrictive
means to achieve the purpose.
Except as provided in
subsection (1) or in any other provision of the Constitution, no
law may limit any right entrenched
in the Bill of Rights.’
40
Section
39(2) provides:
‘
When
interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must promote
the
spirit, purport and objects of the Bill of Rights.’
41
Ferreira
v Levin NO; Vryenhoek v Powell NO
1996 (1) SA 984
(CC) para 26.
42
The
courts in
Ndabangaye
(para
24) and the court below (para 26) cited
Ex
Parte Mothuloe (Law Society, Transvaal, Intervening
1996
(4) SA 1131
(T))
to support this proposition.
But
Ex Parte Mothuloe
did
not deal with s 13(2); nor does it refer to the Constitution. The
case merely confirms a trite principle of statutory interpretation,
which predates the Constitution, that when considering whether a
statutory provision has been complied with the answer is to
be found
by having regard to the intention of the legislature as ascertained
not only from
the language, but also from the
scope and purpose of the enactment as a whole. The approach has been
confirmed by a long line
of authority. This ‘trend in
interpretation’, said Van Dijkhorst J, is ‘away from the
strict(ly) legalistic
to the substantive . . .’.
43
Above
n 23 para 29.
44
Amartya
Sen
The Idea of Justice
(2009) 54.
45
Cf
Bredenkamp v Standard Bank
2010 (4) SA 468
(SCA) para 53.
46
L
C Steyn
Die Uitleg van Wette
(5
ed) 101.
47
Minister
of Safety and Security v Sekhoto
(131/10)
[2010] ZASCA 141
para
14.
48
‘
The
court may, on the application of a candidate attorney who has
satisfied all the requirements for a degree referred to in paragraph
(a)
or
(c)
of
section 2(1), or for the degrees referred to in paragraph
(a
A
)
of
that section, or for a degree or degrees referred to in paragraph
(a
B
)
or
(c
A
)
of
that section in respect of which a certification in accordance with
those respective paragraphs has been done, and subject
to such
conditions as the court may impose, order that the whole or any part
of the period served by that candidate attorney
under articles
before he or she satisfied such requirements, shall, for the purpose
of his or her admission and enrolment as
an attorney, be regarded as
having been served after and under articles entered into after he or
she satisfied such requirements.’
49
Ex
parte Venter
1954 (3) SA 567
(O) at 569D-F.