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[2019] ZAGPPHC 256
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Ex Parte: Mokoena (26189/2019) [2019] ZAGPPHC 256 (27 June 2019)
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
REPORTABLE: YES/
NO
(2)
OF INTEREST TO
OTHER JUDGES: YES/
NO
(3)
REVISED
Case number: 26189/2019
Date:27/6/2019
In
the Ex Parte Application of:
THABILE
MOKOENA
APPLICANT
(FOR HER ADMISSION AS AN
ADVOCATE)
JUDGMENT
TOLMAY,
J:
INTRODUCTION:
[1] The Applicant
brought an application for her admission as an advocate in terms
of
section 115 of the Legal Practice Act 28 of 2016 (the LPA). She also
requested to be admitted as an advocate with a trust account
as
contemplated in section 34(2)(a)(ii) of the LPA.
[2] The Johannesburg
Society of Advocates (JSA) sent a letter to the Applicant's
attorney
pointing out certain defects in her application, namely that:
i) she did not
allege in her affidavit that she had never been arraigned on
a
criminal charge and had never been convicted of a criminal offence;
ii) no letter of
good standing from either the university or work place had
been
attached; and
iii) the annexures to
the founding affidavit were not initialled by the Applicant
and
Commissioner of Oaths.
[3] These
defects were rectified in a supplementary affidavit.
[4] Neither the Legal
Practice Council (LPC), the JSA, or the Pretoria Society of
Advocates
(PSA) noted any objection to the Applicant's request to be admitted
as an "advocate(trust account)".
[5] It must be noted
that the application contained no information whatsoever regarding
her entitlement in terms of the LPA to be admitted as such.
[6] The Court
postponed the matter and requested the Applicant's legal
representative,
the LPC and PSA, (the latter two as
amicus curiae)
to file heads of argument and to address the Court on the
.question of whether a Court may admit an advocate as an advocate
with
a trust account.
[7] The Applicant
subsequently abandoned the prayer to be admitted as an advocate
with
a trust account and did not file any heads of argument. However, the
legal issue involved is important and must be addressed.
The LPC and
PSA did file heads of argument and addressed the Court. The Court is
grateful for their assistance.
[8] The PSA in
their practice note, for the first time, raised an issue regarding
the
validity of Applicant's LLB degree and the date on which it was
conferred upon her. This discrepancy was however clarified on
production
of the original degree certificate.
[9] The
pertinent question in this matter is whether the Court could admit
and enrol an
advocate and specify that such an Applicant be admitted
as an advocate (with a trust account). However the formulation of the
appropriate
order when admitting legal practitioners and the duties
of the LPC when considering applications for admissions also arose
during
the arguments before us and it is accordingly appropriate to
address these issues too.
[10] Although the Law Society
never had an obligation to peruse or comment on applications to be
admitted
as advocates, the LPA changed that. Section .3(c) of the LPA
states, that one of the purposes of the Act is to create a single
unified statutory body, which will regulate the affairs of all legal
practitioners and all candidate legal practitioners, in pursuit
of
the goal of an accountable, efficient and independent legal
profession. Section 5(d) states that it is an object of the LPC
to
regulate legal practitioners. As a result the LPC has a statutory
obligation to, not only peruse the applications of all prospective
legal practitioners, but also to ensure that those applications
comply with the LPA. The LPC accordingly has a duty to inform the
Applicant and the Court of any non-compliance by an Applicant and to
indicate whether they support the application or not.
[11] The Societies of Advocates
also have a duty as co-custodians of the profession to ensure
compliance
with the LPA and should peruse applications of legal
practitioners who wish to be enrolled as an advocate and inform the
Court
of they have any objections to the admission of an advocate.
[12] Section 24 of the LPA regulates the
admission and enrolment of legal practitioners and provides
as
follows:
"(1) A person
may only practise as a legal practitioner if he or she is admitted
and enrolled
to practise as such in terms of this Act.
(2)
The
High Court
must admit to practise and authorise to be
enrolled as a legal practitioner
, conveyancer or notary or
any person who, upon application, satisfies the court that he or she-
(a)
is duly qualified as set out in section 26;
(b)
is
a-
(i)
South African citizen; or
(ii)
permanent resident in the Republic;
(c)
is
a fit and proper person to be so admitted; and
(d)
has
served
a
copy of the application on the Council, containing
the information
as determined in the rules within the time period
determined in the rules.
..." [Court's emphasis]
[13]
As
is provided for in section 24(2)(a) above, the minimum qualifications
and practical vocational training is set out in section
26 of the Act
and provides for three categories of legal practitioners, namely
attorneys, advocates and advocates with a trust
account.
[1]
[14] In the previous dispensation,
the Registrar was given leave to enrol a successful Applicant,
who
was admitted to practice as an attorney, notary, conveyancer or
advocate. However, under the LPA, these are two distinct and
separate
procedures.
[2]
[15] In terms of the LPA, a
distinction is made between the admission, which is done by the
Court, and enrolment, which is done by the LPC. In this instance,
section 30 of the LPA provides as follows:
"(1) (a)
A person duly admitted by the High
Court and authorised to be enrolled to practise as
a
legal practitioner must apply to the
Council in the manner determined in the rules. for the enrolment of
his or her name on the
Roll.
(b)
The application referred to in paragraph (a) must-
(i)
be
accompanied by the fee determined in the rules;
(ii)
indicate whether
the Applicant intends to practise as an attorney or an Advocate and,
in the case of an Advocate, whether he or
she intends practising with
or without
a
Fidelity Fund certificate; and
(iii)
be submitted to the
Council in the manner determined in the rules through the Provincial
Council where the legal practitioner intends
to practise.
(2)
The
Council must enrol the Applicant
as
an attorney,
Advocate, notary or conveyancer,
as
the case may
be, if her she complies with the provisions of this Act.
(3)
The
Council must keep a Roll of Legal Practitioners, as determined in the
rules, which must reflect
-
(a)
the particulars of practising and non-practising legal
practitioners and, in the
case
of Advocates, whether they
practise with or without a Fidelity Fund certificate;
... " [Court's emphasis]
[16] It is clear from section 30(2)
that once the Court has admitted and authorised the enrolment
the LPC
has no discretion and must enrol the Applicant if he/she has complied
with the Act.
[3]
[17] If one then has further regard to
section 6(3) of the LPA which specifically sets out the powers
and
functions of the LPC, it provides that:
"6
(3) The Council must, subject
to
this Act
-
(a)
enrol
a
duly admitted legal practitioner as
such; and
(b)
keep
a
Roll of legal practitioners and decide
on-
(i)
the form of the certificates and the Roll to be kept;
(ii)
the maintenance of the Roll or issuing of certificates;
and
(iii)
the reviewing of the Roll and the manner in which
alterations may be made to the Roll."
[18] Rule 17 of the LPA Rules,
which governs the procedure for applications for admissions
and
enrolment of Legal Practitioners is also of importance and , provides
as follows:
"17. A
person seeking to be admitted to practise and to be authorised to be
enrolled
as
an
attorney or
as
an
Advocate under the Act
-
17.1.1
must
apply to a High Court in terms of the provisions of section 24(2) of
the Act; and
17.1.2
must
simultaneously lodge an application in terms of sections 30(1)(a) and
30(b)(iii) of the Act with the Council, through the Provincial
Council where the Applicant intends to practise (or in the case of a
person who does not intend to practise, where that person
is
ordinarily resident), for the enrolment of his or her name on the
roll of attorneys or Advocates, or on the roll of non
practising
attorneys or Advocates, as the case may be, which application shall
be treated as an application subject to the condition
that the
Applicant is duly admitted by the High Court and authorised to be
enrolled
as a
legal practitioner in terms of section 30 of the
Act.
17.2
An
application for admission and enrolment in terms of rule 17.1 must be
in writing and must be accompanied by an affidavit by the
Applicant
setting out the following information supported, where applicable, by
documentary evidence:
…
.”
[19] It is clear from the
provisions, of the LPA that the LPC (and its respective provincial
councils) is the administrative body in which the legislative
authority vests to enrol a duly admitted legal practitioner as an
attorney, an advocate, notary or conveyancer, as the case may be. The
LPA retains the distinction between advocates and attorneys
through a
subsidiary regime of enrolment performed by the LPC in which the LPC
enrols legal practitioners on separate attorneys'
and advocates'
rolls.
[20] It appears from section
24(2) that the Legislature empowered the Court to admit and to
authorise the enrolment of a legal practitioner. This is supported by
section 30(1)(a) which obliged a person who is admitted by
the Court
and authorised by the Court to be enrolled to apply to the LPC for
enrolment.
[21] In the recent judgment of
Ex
parte Goosen & Others,
the appropriate formulation of the
order admitting an Applicant as a legal practitioner has been set out
in the judgment as follows:
[4]
"The Applicant is admitted to practice as a
Legal Practitioner and the Legal Practice Council is authorised to
enrol the Applicant
as an [Attorney] I [Advocate]".
[22]
During
argument we have been informed by counsel appearing for the PSA that
some Courts have refused to grant the second part of
the order that
reads
"and
the Legal Practice Council is authorised to enrol the Applicant as an
[Attorney][Advocate]."
There
seems to be a view that the LPC is already authorised to enrol an
Applicant by virtue of the legislative authority awarded
to it by
LPC. The view seems to be that it is superfluous for the Court to
make such an order. Quite apart from the fact that the
aforesaid
order was a ruling by a Full court and as a result should be followed
by other Courts, it is also the correct order if
one takes the
wording of section 24(2) and section 30(1)(a) into consideration.
[23] Rule 17 proceeds
to set out all the particulars that must be contained in the
application
to the Court and the LPC, and various distinctions are
made therein of particulars that should be contained in the
application
in the case of an Applicant wishing to be enrolled as an
attorney, or in the case of the Applicant wishing to be enrolled as
an
advocate. Accordingly, although there are many similarities in an
application to be admitted as a legal practitioner, the specific
requirements to be enrolled as an advocate or an attorney still
differs significantly.
[24] The PSA argued, and
correctly so, that the Court is not authorising the LPC to proceed
with the enrolment, or vesting the LPC with the power to perform its
functions which it has, in any event already been vested with,
by
virtue of the LPA. The Court is confirming that the Applicant
satisfied the Court that its application complies with the specific
requirements for enrolment as that of an advocate, or that of an
attorney, and merely authorises the category of an attorney, or
advocate, in which the Applicant may be enrolled by the LPC.
[25] It is accordingly necessary
for the Court to, not only admit the Applicant as a legal
practitioner in terms of sections 24 and 26 (and in some transitional
instances read with section 115), but also to establish whether
the
Applicant satisfies the requirements as set out in Rule 17 for
enrolment of an attorney, or that of an advocate, and authorises
the
LPC to enrol the Applicant as such.
[26] The Court is thus vested
with the power to authorise the category in which the Applicant
may
be enrolled. Therefore, the formulation of the order in the matter of
Ex Parte Goosen
is the order that a Court should make.
[27] The final question is
whether a Court is empowered to admit an advocate as an advocate
with
a trust account. The legislation already referred to makes it clear
that provision is made for three categories of legal practitioners,
namely, an attorney, a referral advocate and a "trust account
advocate".
[28] The LPA defines a 'trust
account practice' as a practice conducted by one or more attorneys
who are, or an advocate referred to in section 34(2)(b).
[5]
The LPA Rules defines a 'trust account advocate' as an advocate
referred to in section 34(2)(b) of the LPA who is, in terms of
the
LPA required to hold a Fidelity Fund certificate.
[6]
[29] With regards to the handling
of trust monies, Section 84 of the LPA provides that:
"(1)
Every attorney or any Advocate referred to in section 34(2)(b), other
than
a
legal
practitioner in the full-time employ of the South African Human
Rights Commission or the State as
a
state
attorney or state Advocate and who practises or is deemed to practice
-
(a)
for his or her own account either alone or in
partnership; or
(b)
as
a
director of a practice which is
a
juristic entity, must be in possession of a Fidelity Fund
certificate.
…
(4)
A
Fidelity Fund certificate must indicate that the legal practitioner
concerned is obliged to practise subject to the provisions
of this
Act, and the fact that such a legal practitioner holds such a
certificate must be endorsed against his or her enrolment
by the
Council.
…”
[30] The application for
the issue of Fidelity Fund certificates is addressed in Section 85
and provides
as· follows:
"(1)
(a) A legal practitioner
who is obliged
in terms of section 84(1) to be in possession of a
Fidelity Fund certificate must apply to the Council for such a
certificate as
determined in the rules.
(b)
Every
legal practitioner referred to in paragraph (a) who, for the first
time, practises as such, must, within the period and after
payment of
the fee determined by the Council in the rules, complete a legal
practice management course approved by the Council
determined in the
rules.
…”
[31] From the above
provisions of the LPA, it is evident that certain requirements need
to be
met before an advocate can practise as a 'trust account
advocate', such as being in possession of a Fidelity Fund
certificate,
and on having completed a legal practice management
course approved by the LPC.
[32] It is further clear that a
Fidelity Fund certificate is obtained by way of application
to the
LPC, and ultimately forms part of the LPC and its Provincial
Councils', administrative functions and duties as is envisaged
in the
LPA. Accordingly, the Court is not involved in the process of
admitting an advocate as a trust account advocate. It is also
self-evident that, upon application to the LPC for a Fidelity Fund
Certificate, an Applicant should already have been admitted
as a
legal pracitioner by the Court, and enrolled as an advocate by the
LPC. An Applicant will not be able to successfully apply
for such a
certificate if he/she has not yet been admitted and enrolled.
[33] Section 32 of the LPA
governs the process of conversion and as such, the process to be
followed in order to practise as a 'trust account advocate' after
being duly admitted and enrolled, and provides as follows:
"(1) (a)
A legal practitioner may, at any time,
as determined in the rules and
upon payment of the fee determined by the Council in the rules, apply
to the Council to convert
his or her enrolment as an attorney to that
of an Advocate and vice versa.
(a)
An
Advocate practising as such referred to in section34(2)(a)(i) may, at
any time, as determined in the rules and upon payment of
the fee
determined by the Council in the rules, apply to the Council for the
conversion of his or her enrolment to that of an Advocate
practising
as
such referred to in section 34(2)(a)(ii) and vice versa.
(2)
The
Council may impose any conditions as it considers appropriate to give
effect to the conversion and the provisions of this Act
relating to
enrolment.
(3)
The
Council may make rules setting out the circumstances under which
a
legal practitioner can apply for the conversion of his or her
enrolment and any requirements such legal practitioner must comply
with."
[34] From the above it is evident that
a referral advocate who wishes to practise as a 'trust account
advocate', must apply to the LPC for his/her conversion of his/her
enrolment to that of a 'trust account advocate'.
[35] Only once the Court has admitted
an Applicant and the LPC has enrolled him/her as an advocate,
may
that applicant apply to the LPC in terms of Section 85 (1) for a
Fidelity Fund certificate. The Court has no jurisdiction to
order/authorise the enrolment of an advocate as a 'trust account
advocate'.
[36] Upon obtaining the Fidelity Fund
Certificate and provided that the Applicant meets all the necessary
requirements as provided for by the provisions, rules and regulations
of the LPA, the Applicant can apply to the LPC to be converted
from
"referral Advocate" to 'trust account advocate' in terms of
section 32 of the LPA.
[37] As a result of the aforesaid a
Court does not have the necessary jurisdiction to enrol an advocate
as an "advocate with a trust account".
[38] The following order is made:
1.
The
Legal Practice Council and the Pretoria Society of Advocates' are
admitted as
amicus curiae.
2.
The
Applicant is admitted to practice as a legal practitioner and the
Legal Practice Council is authorised to enrol the Applicant
as an
advocate.
RG
TOLMAY
JUDGE
OF THE HIGH COURT
I
agree:
C I MOOSA
ACTING JUDGE OF THE HIGH COURT
DATE
OF HEARING:
12 JUNE 2019
DATE
OF JUDGMENT:
27 JUNE
2019
ATTORNEY
FOR APPLICANT:
MOCHE
ATTORNEYS
ADVOCATE
FOR APPLICANT:
MS
T M LETEBELE
ON
BEHALF OF LEGAL PRACTICE
COUNCIL:
MR L
GROOME
ON
BEHALF OF PRETORIA SOCIETY
OF
ADVOCATES:
ADV RICKY ELLIS
[1]
Section 26 Minimum qualifications and practice; vocational training
(1)A
person qualifies to be admitted and enrolled as a legal
practitioner, if that person has--
(a)
satisfied all the requirements for the LLB degree
obtained at any university registered in the Republic, after
pursuing for that
degree
-
(i) a
course of study of not less than four years; or
(ii) a
course of study of not less than
five
years if the LLB degree
is preceded by a bachelor's degree other than the LLB degree,
as
determined in the rules of the university in question and
approved by the Council; or
(b)
subject to section 24(2)(b), satisfied all the
requirements for a law degree obtained in
a
foreign country,
which is equivalent to the LLB degree and recognised by the South
African
Qualifications Authority established by the National
Qualifications Framework Act, 2008 (Act No.
67
of2008); and
(c)undergone
all the practical vocational training requirements
as
a
candidate legal practitioner prescribed by the Minister, including
-
(i)
community service
as
contemplated in section
29,
and
(ii)
a legal practice management course for candidate legal
practitioners who intend to practise as attorneys or as Advocates
referred
to in section 34(2)(b); and
(d)
passed a competency-based examination or
assessment
for
candidate legal practitioners
as
may be determined in the
rules.
(2)
An attorney qualifies to be enrolled
as
a conveyancer,
if he or she has passed a competency-based examination or assessment
of conveyancers as determined in the rules
by the Council. (3) An
attorney qualifies to be enrolled as a notary, if he or she has
passed a competency-based examination
or assessment for notaries as
determined in the rules by the Council."
(i)
a course of study of not Jess than four years; or
(ii)
a course of study of not less than five years if the LLB
degree
is
preceded by a bachelor's degree other than the LLB
degree, as determined in the rules of the university in question and
approved
by the Council; or
(b)
subject to section 24{2){b), satisfied all the
requirements for a law degree obtained in a foreign country, which
is equivalent
to the LLB degree and recognised by the South African
Qualifications Authority established by the National Qualifications
Framework
Act. 2008 (Act No.
67
of 2008); and
(c)
undergone all the practical vocational training
requirements as a candidate legal practitioner prescribed by the
Minister, including
-
(i)
community service as contemplated in section 29, and
(ii)
a legal practice management course for candidate legal
practitioners who intend to practise as attorneys or as Advocates
referred
to in section 34(2)(b); and (d) passed
a
competency-based examination or assessment for candidate legal
practitioners
as
may be determined in the rules. (2)An
attorney qualifies to be enrolled as a co11veyancer, if he or she
has passed a competency-based
examination or assessment of
conveyancers as determined in the rules by the Council. (3) An
attorney qualifies to be enrolled
as
a notary, if he or she
has passed a competency-based examination or assessment for notaries
as
determined in the rules by the Council."
[2]
See also
The South African Legal Practitioner: A commentary on
the Legal Practice Act,
Chapter 4, by Ellis, Lamey and Kilbourn.
[3]
See
also Regulation 5 of the Regulations of the
Legal
Practice Act, 28 of 2014
, issued by the Minister, for the power,;
and functions that vests in Provincial Councils.
[4]
(2018/2137) [2019] 7..AGPJH C 68 at par [54].
[5]
Section 1
of the
Legal Practice Act, 28 of 2014
.
[6]
Rule 1.34 of the LPA Rules.