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[2019] ZAMPMBHC 1
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Ex Parte: Steyn and Others (2313/19; 2748/19; 2749/19; 1623/19; 2166/19; 2140/19; 2588/19 3054/19; 2136/19; 3043/19; 4011/19; 2078/19; 3366/19) [2019] ZAMPMBHC 1; 1991/2017 (13 December 2019)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA,
MPUMALANGA DIVISION, MBOMBELA
(MAIN SEAT)
CASE NUMBERS:
2313/19; 2748/19;
2749/19; 1623/19; 2166/19; 2140/19; 2588/19
3054/19; 2136/19;
3043/19; 4011/19; 2078/19 AND 3366/19
In the
ex parte
applications of:
MARIETTE
STEYN
Applicant
AND 12 OTHER
APPLICANTS
(For admission as
Legal Practitioners)
JUDGMENT
Roelofse AJ
[1]
Out
with the old – in with the new. The Legal Practice Act, 2014
(“
the
Act”
)
[1]
introduced an entirely new regime for the legal profession in South
Africa. In addition, the Act introduced significant changes
for
persons who wish to apply be admitted and authorized to be
enrolled
[2]
by the court
[3]
to act as legal practitioners.
[4]
The Act come into operation in stages on 1 February 2015, 31 October
2018 and 1 November 2018.
[5]
The
entire Act is now in operation.
[2]
This
judgment concerns Chapters 2
[6]
,
3
[7]
, 9
[8]
and 10
[9]
of the Act. It visits
the powers and functions of: the South African Legal Practice Council
(“
the
LPC
”
),
the Provincial Councils (
the
“PC” or “the PC’s”
)
and the Minister. It sets out the changes brought about by the Act
and explains the requirements for the admission of legal
practitioners
by this court in terms of the Act. At the end of it
all, this judgment seeks to provide a guideline for applications to
court for
the admission of legal practitioners under the provisions
of the Act and those who assist them.
[3]
Ms.
Mariette Steyn
[10]
and four
other applicants
[11]
launched
applications (“
the
initial applications”
)
to be admitted and authorized to be enrolled as legal practitioners
in terms of the provisions of the Act.
[12]
They applied to be admitted as attorneys.
[13]
[4]
On
9 September 2019, this court heard the initial applications
[14]
.
The court made similar orders in all the initial applications as
follows (“
the
first order”
):
“
1.
The application is hereby postponed to the 28
th
day
of October 2019;
2.
The Applicant is hereby directed to serve a copy of the application
to the Legal Practice Council: Mpumalanga Provincial Office
as well
as the National Office of the Legal Practice Council in Midrand.
3.
The Applicant is hereby directed to serve the copy of the application
before the 13
th
day
of September 2019.”
[5]
On
17 September 2019, His Lordship Mr. Justice Legodi JP handed down
reasons for the first order. Principally, the court was not
satisfied
that the requirement of service of the applications provided for in
section 24(2)(d) of the Act was met.
[15]
THE DIRECTIVE
[6]
On
20 September 2019, His Lordship Mr. Justice Legodi issued a directive
to the applicants’ legal practitioners, the Mpumalanga
Provincial Council (“
the
Mpumalanga Council”
),
the Mpumalanga Society of Advocates (“
the
Bar”
)
and the South African Legal Council (“
the
LPC”
)
(“
the
directive”
).
[16]
The directive reads as follows:
“
On
9 September 2019 the following admission applications were postponed
to 28 October 2019 for service on the Council after the
Court not
having been satisfied with service and the authority of the Gauteng
and Mpumalanga Provincial Offices or Councils to
pronounce themselves
on the fitness or otherwise of the applicants to be admitted as legal
practitioners:
Ø
N Mostert
Ø
KN Lwandle
Ø
CS Mdluli
Ø
M Steyn
Ø
TP Motha
The reasons for the
order were handed down on 17 September 2019. In as much as there
might be a suggestion that the Minister in
terms of Regulation 5
promulgated in terms of Section 109(1)(a) of the Act, the applicants
are hereby directed to file written
heads of argument by no later
than 14 October 2019 to deal with the following issues:
1.
I regulation 5 not ultra vires the empowering
legislation for the performance of the powers and functions of the
Council established
in terms of section 4.
2.
If the answer is that regulation 5 ultra vires
[sic] the empowering legislation, what is [sic] legislative authority
under which
powers and functions are conferred on the Provincial
Councils by way of regulation?
2.1
Put differently, does the Minister have
legislative authority to confer such powers and functions without
delegation by the Council
to the Provincial Council the [sic] context
of the following provisions [sic] the Act:
(a)
Section 6(1)(a)(x)(aa) and (bb)
(b)
Section 21(1)(d)
(c)
Section 23(1)
2.2
Related to section 6(1)(a)(x), does regulation
5 not divest the Council of its powers or functions to delegate? (see
para (aa)).
And does the regulation 5 [sic] not preclude the Council
from varying or setting aside any decision by the Provincial Council
in
respect of powers or functions supposed to have been delegated as
the Council is legislatively so empowered to do in terms of the
sections referred to in paragraph 2.1 above.
3.
The applicants are further requested to deal
with the following questions:
3.1
Does Rule 17 of Government Notice 401 of 20
July 2018 apply to the applicants?;
3.2
If the Rule does apply, did the applicants
comply therewith;
3.3
Is Rule 17.1.2 not ultra vires the provision of
section 30(1)(a) insofar as it requires simultaneous lodging of the
application
in terms of section 30(1)(a);
3.4
Is section 26 applicable to the present
applications? And if so, did the applicants comply therewith.
Seen in the light of
the interest other professional bodies may have in the outcome of
these applications and the need for clarity
as to how to deal with
future applications, the Mpumalanga Society of Advocates, Mpumalanga
Provincial Council, the South African
Legal Practice Council are
hereby directed to file heads of argument by no later than 14 October
2019 dealing with the questions
raised above.”
[7]
Pursuant
to the directive, the Bar, Seymore Du Toit Attorneys
[17]
and the LPC filed their heads of argument.
[18]
No heads of argument were filed by MT Silinda and Associates
[19]
.
[8]
In
addition, the LPC filed an affidavit deposed to by Mr. Jan Petrus
Stemmett, a member of the Executive Committee of the LPC,
to“…
...address
the issues and questions raised in the Directive, to traverse a
number of factual issues”
.
Mr. Stemmett says that the LPC considered it appropriate to present
relevant facts in order to be of assistance to the court
.
Mr.
Stemmett requested the court’s indulgence in accepting and
considering the LPC’s affidavit in that spirit.
[20]
[9]
The
directive seeks to address the legislative scheme in terms of which
legal practitioners are admitted to practice in terms of
the Act. In
particular, they query directly, sections 4, 6, 21, 23, 24, 30, 109
of the Act, the Regulations that were promulgated
by the Minister
[21]
(in particular, Regulation 5) and the Rules that was published by the
National Forum (in particular, Rule 17).
[22]
[10]
Although not referred to directly in the
directive, sections 94, 95, 97, 105 and 120 of the Act are also
traversed in this judgment.
[11]
Subsequent
to the order and the judgment, further applications were delivered
for admission in terms of section 24(1) of the Act.
[23]
.
In view of the order, the judgment and the directive, the various
courts who heard the further applications, postponed the them
to 28
October 2019.
[12]
The initial applications and the further
applications were before the court on 28 October 2019. The LPC, the
Bar and the applicants
were represented and heard.
[13]
During the LPC’s address at the
hearing, much of debate focused over the legality of the Regulations.
The debate was whether
the Minister followed the procedure provided
for in section 109(1) of the Act prior to the promulgation of the
Regulation. Righty
so, for if the Minister did not follow the
prescripts, the Regulation may have been
ultra
vires
. The parties agreed that Rule 17
applies to the applicants.
[14]
After hearing argument, the court admitted
all the applicants who applied to be admitted and enrolled as
attorneys. The applications
for admission as advocates were not
granted. Orders were made so that those applicants were given an
opportunity to amend their
papers. The court reserved judgment in
respect of Regulation 5.
[15]
In addition, the court ordered as follows
(“
the second order”
):
“
2.
The National Council is hereby directed to file an affidavit with
information regarding:
(i) Whether Regulation
5 was properly promulgated in compliance with section 109(1)(a) with
specific reference whether National
Forum did make recommendations as
envisaged in sub-section (1)(a) and if so when were the
recommendations made and what recommendations
entailed with reference
to applications for admissions as legal practitioners;
(ii) The information
referred to in 2(i) above must be submitted by no later than 21
November 2019 seen in the light of the urgency
of the matter for
future applications for admission as legal representatives;
3. As to what must
happen to applications that might be enrolled for hearing before
clarity is found in the appropriateness of regulation
5, it is hereby
directed that the powers and functions that National Council must
consider in the mean time, conferring in general
terms to the
Provincial Council, with the authority not only to have the
applications served on it, but also to make such recommendations
as
it might find necessary for the purpose of assisting the court in
consideration of the applications before it”
[16]
On 19 October 2019, in compliance with the
second order, the LPC filed a supplementary affidavit, once again
deposed to by Mr. Stemmett.
We shall deal with the supplementary
affidavit below.
THE OLD SCHEME
[17]
Before
dealing with the new scheme, we briefly, to a limited extent,
traverse the old scheme
[24]
that regulated the admission of advocates and attorneys to practice.
We purposefully quote extensively from the now repealed acts
for the
readers of this judgment might want to compare the requirements for
admission of both attorneys and advocates under the
old and the new
scheme more accurately.
[18]
Attorneys
were admitted and enrolled in terms of section 15 of the Attorneys
Act.
[25]
Section 15 sets out
the requirements for such an admission and enrollment. The court had
to be satisfied that the applicant has
met the requirements in
section 15 of the Attorneys Act through evidence on affidavit in
support of the application for admission.
An important feature of the
old scheme was that the court both admitted and enrolled a person to
act as attorney upon application
in terms of the Attorneys Act.
[19]
In
terms of the provisions of section 19 of the Attorneys Act, any
person who applied to court to be admitted as a practitioner
or
re-admitted must “…
..deliver
to the secretary of the society having jurisdiction in the area in
which the court to which such application is made,
is situated,
together with his or her notice of application, a copy of his or her
application for admission or readmission and
copies of all
affidavits, certificates and other documents or papers which are
referred to therein or connected therewith…..”.
The
‘society’ referred to in section 19 is the law societies
that existed before the Act.
[26]
[20]
Advocates
were admitted in terms of section 3 of the Advocates Act.
[27]
Section 3A(1)(c) of the Advocates Act required the applicant to
“…
..serve
a copy of the documents and affidavit referred to in paragraphs (a),
(b) and (bA) on the Secretary of the Bar Council or
the Society of
Advocates of the division concerned
.”.
[28]
[21]
The Advocates Act did not define “Bar
Council” but Rule 3A of the Uniform Rules echoed the provisions
of Section 3A(1)(c)
of the Advocates Act. In practice, applications
for admission as an advocate were served upon the Society of
Advocates in the division
the applicant intended to practice.
[22]
Under the old scheme, just as in the
instance of attorneys, the court admitted persons to act as advocates
and also authorized their
enrolment upon application to court in
terms of the Advocates Act.
[23]
The involvement of the supervisory
institutions in the jurisdictions where both attorneys and advocates
intended to practice was
therefore mandatory. Under the old scheme,
there was no central authority which regulated attorneys and
advocates, their admission
and enrolment.
THE NEW SCHEME
[24]
In
Ex
Parte: Goosen and Others
[29]
,
the following was said regarding the new scheme:
“
On
1 November 2018 the LPA came into force and the Admission of
Advocates Act 74 of 1964 (AAA) and the Attorneys Act 53 of 1979
(ATT)
were repealed. Axiomatically, henceforth, the only route to admission
to practice law in South Africa. was to be admitted
as a "Legal
Practitioner" (LP) by a High Court pursuant to section 24(1) and
(2) of the LPA.[2] Section 24 of the LPA
is the gateway to admission
and consequent enrolment and is satisfied by, in turn, satisfying the
provisions of section 26(1).The
LPA retains the distinction between
advocates and attorneys through a subsidiary regime of enrolment
performed by the LPC in which
the LPC "enrols" LPs on
separate attorneys' and advocates' rolls.”
[25]
We proceed to set out the new scheme that
governs the admission of attorneys and advocates and their enrolment.
We shall firstly
dwell on those provisions in the Act that are
relevant for purposes of the directive and the second order.
Thereafter we address
the requirements for admission and enrolment
under the new scheme.
The Act
[26]
Section 3(c) provides that one of the
objects of the Act is to “
[c]reate
a single unified statutory body to 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”.
[27]
That
unified statutory body is the LPC.
[30]
Section 4 establishes the LPC as a body corporate with full legal
capacity, and, provides that the LPC exercises jurisdiction over
all
legal practitioners and candidate legal practitioners as contemplated
in the Act.
[28]
Section 5(d) provides that one of the
objectives of the LPC is to regulate all legal practitioners and all
candidate legal practitioners.
[29]
Section 6 provides the powers and functions
of the LPC. Section 6(1)(a)(xx) is pertinent in this matter. It
provides for the delegation
of the LPC’s powers to the PC’s
as follows:
[The
LPC may] “
delegate any of its
powers and functions to its committees or Provincial Councils,
subject to any conditions it may impose, which
delegation does not—
(aa)
divest the Council of the power or function so delegated; and
(bb)
preclude the Council from varying or setting aside any decision made
under a delegation;……”
[30]
Section 21 provides for a general
delegation (including to PC’s) of powers and the assignment of
functions of the LPC. In
terms of sub-section 21(1)(d), [a delegation
or assignment in terms of subsection (1)] “
.…does
not divest the Council of the responsibility for the exercise of the
power or the performance of the duty or function.”
[31]
Section 23(1) provides as follows:
“
The
Council must establish Provincial Councils the areas of jurisdiction
of which must correspond with the areas under the jurisdiction
of the
Divisions of the High Court of South Africa as determined by the
Minister, from time to time, in terms of section 6 (3)
of the
Superior Courts Act, 2013 (Act No. 10 of 2013), and may delegate to
the Provincial Councils such powers and functions which,
in the
interests of the legal profession are better performed at provincial
level.”
[32]
The admission of legal practitioners is
provided for in Section 24(1) as follows:
“
Admission
and enrolment.—(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.”
[33]
Sub-section (2)(d) of section 24 provides
as follows:
“
(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—
………
..
(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.”
[34]
Section 26(1) sets the minimum requirements
for admission and vocational training. It provides as follows:
“
Minimum
qualifications and practical 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 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.”
[35]
Section 26 introduces community service
and, for the first time (in the case of advocates), for vocational
training and a competency-based
examination or assessment as
requirements for admission and enrolment. The old scheme had no such
requirements. The Constituent
Bars of the General Bar Counsel of
South Africa provided vocational training and examinations for
purposes of admission to the
respective Bars. The absence of
vocational training and a competency-based examination therefore did
not prevent a person from
being admitted as an advocate under the old
scheme. Under the new scheme, a person my not be admitted or enrolled
without undergoing
vocational training and without passing a
competency-based examination.
[36]
Section
29 provides that the Minister must, after consultation with the LPC,
prescribe the requirements for community service from
a date to be
determined by the Minister. The minimum requirements that may be
included are set out in sub-section (1)(a) and (b)
and sub-section
2(a) to (e).
[31]
In terms of
section 29(3), the LPC may on application and on good cause shown,
exempt any candidate legal practitioner or legal
practitioner from
performing community service, as set out in the rules. Although
section 29 came in operation on 1 November 2018,
the Minister is yet
to prescribe the requirements for community service. Therefore, none
of the applicants could therefore comply
with the provisions of
section 29(1) and (2).
[37]
Section 30 provides for enrolment of a
legal practitioner with the LPC. Sub-section (1) provides as follows:
“
(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.”
[38]
Sub-section (2) of section 30 provides
as follows:
“
The
Council must enrol the applicant as an attorney, advocate, notary or
conveyancer, as the case may be, if he or she complies
with the
provisions of this Act.”
[39]
Section 94 empowers the Minister to make
regulations. It provides as follows, in relevant part:
“
(1)
The Minister may, and where required in the circumstances, must,
subject to subsection (2), make regulations relating to—
(a)
…
..
(b)
…
..
………
(o)
any other matter in respect of which
regulations may or must be made in terms of this Act; or
(p)
any other ancillary or administrative matter
that is necessary to be prescribed for the proper implementation or
administration
of this Act.
(2)
The regulations contemplated in subsection (1)
must—
(a)
in
the case of subsection (1) (a)
to
(l)
and
(o)
and
(p), be made after consultation with the Council, unless otherwise
indicated; and
(b)
in
the case of subsection (1) (m)
and
(n), be made after consultation with the Council and the Board.
(3)
Any regulation made under subsection (1)
must,
before publication thereof in the Gazette, be approved by
Parliament.”
[40]
Section 95, in relevant part, provides that
the LPC may make rules as follows:
“
(1)
The Council may, and where required in the circumstances, must by
publication in the Gazette, make rules relating to—
(a)
…
.
……
..
(k)
the information which must be submitted to the Council when a person
applies to court for admission as a legal practitioner
and the time
period within which that information must be submitted as
contemplated in section 24 (2) (d);
(t)
the manner in which an application by a person admitted by the court
as a legal practitioner must be submitted to the Council
through the
Provincial Council in question for the enrolment of his or her name
on the Roll as contemplated in section 30 (1) (a)
and
(b) (iii);
(u)
the fee to be paid by a person applying to the Council for enrolment
as contemplated in section 30 (1) (b) (i);
(v)
the manner in which the Council must keep the Roll of legal
practitioners as contemplated in section 30 (3);
(4) (a)…..”
”
[41]
Section
97 deals with the National Forum.
[32]
In relevant part, it reads as follows:
“
Terms
of reference of National Forum.
—
(1)
The National Forum must, within 24 months after the commencement of
this Chapter—
(a)
make recommendations to the Minister on the following:
……
(iii)
the composition, powers and functions of the Provincial Councils;
(b) ……
(c)
make rules, as
provided for in section 109 (2) and (3).
The Regulation
[42]
Section 109 of the Act empowers the
Minister to make regulations and rules. In relevant part, it provides
as follows:
“
Rules
and regulations.
—
(1)
(a) The Minister must, within six months after receiving
recommendations from the National Forum as provided for
in section 97
(1) (a), make regulations by publication in the Gazette, in
consultation with the National Forum, in order to give
effect to the
recommendations of the National Forum as contemplated in section 97
(1) (a).
(b) If the
National Forum fails to make recommendations as provided for in
paragraph (a), within the timeframe provided for
in section 97, the
Minister must, within six months, make the regulations in question,
after consultation with the National Forum.
(bA) The
Minister must, after receiving recommendations from the National
Forum as contemplated in section 97 (6), and in
consultation with the
National Forum, make the regulations contemplated in section 94 by
publication in the Gazette, before the
date of commencement of
Chapter 2.
(c) Any
regulation made under this subsection must, before publication
thereof in the Gazette, be approved by Parliament.”
[43]
During the debate at the hearing, the court
raised its concern whether the Minister has complied with the
prescripts of section
109(1) of the Act. Paragraphs 2(i) and (ii) of
the second order seeks to address the concern.
[44]
The
LPC’s supplementary affidavit addresses the court’s
concerns. In the supplementary affidavit, Mr. Stemmet deals
with the
process that was followed before the regulation was promulgated by
the Minister. We have taken into account what Mr. Stemmett
alleges
and accept his evidence. It appears that the prescripts of section
109(1)(a) were followed by the Minister save that, according
to Mr.
Stemmet, the Minister received the Forum’s recommendations on
27 October 2017.
[33]
The
Regulation was published on 31 August 2018, i.e out of the six
months-time period prescribed by section 109(1)(a) of the Act.
Does
the Minister’s delay impact upon the lawfulness of the
Regulation? We say no because to declare the Regulation
ultra
vires
on
account of this score would not only cause a serious predicament with
regards to all matters the Regulation seeks to regulate
but it will
also serve no purpose to do so. Although the delay ought to be
criticized, the Regulation was ultimately made and must
remain in
force.
[45]
The directive raises the lawfulness of Regulation 5. The
relevant part of Regulation 5 reads as follows:
“
Powers
and functions of Provincial Councils
.—(1)
A legal practitioner and a candidate legal practitioner who has
registered a business address within the area
of jurisdiction of a
Provincial Council falls within the jurisdiction of that Provincial
Council.
(2) A Provincial
Council has the following powers and functions—
(a) …..
………
..
(d)
to receive and process applications for admission by persons within
the jurisdiction of that Provincial Council to practise
as legal
practitioners, conveyancers or notaries, pursuant to the provisions
of section 24 (2) of the Act;”
[46]
The concern was this. Section 24(2)(d) of the Act prescribes
that an application for admission and enrolment must be served on the
LPC. Regulation 5 entitles the PC’s to receive and process
applications for admission. Therefore, does Regulation 5 offend
the
provisions of section
6(1)(a)(xx) and section 21
of the Act - i.e, does Regulation 5 divest the LPC
of its
function to receive service of an application for admission?
[47]
The LPC and the
Bar LPC maintained that the Minister lawfully made Regulation 5.
[34]
Seymore and Du Toit says: “
[R]egulation
5 could be viewed as ultra vires but maintain that the PC had
delegated power to receive applications for admission.
”
[35]
[48]
Is Regulation 5
ultra
vires
for
the reasons raised in the query? We also say no because, Regulation 5
must be interpreted purposefully, having regard to the
purpose and
objects of the Act. We see no reason why it would benefit access to
the profession if aspiring legal practitioners
may serve their
applications on PC’s instead of the LPC. To require them to
serve on the LPC who is situated in Midrand Gauteng
would simply be
too onerous. In any event Regulation 5 does not trespass on the ill
section sub-section 6(1)(a)(xx)(aa) and section
21 of the Act seeks
to prevent. By regulating that the PC’s are to receive and
process applications for admissions in terms
of section 24, supports
the purpose and objectives of the Act as set out in sub-section
3(b)(ii).
[36]
In any event,
surely service and receipt of applications for admission constitute
any
other ancillary or administrative matter that is necessary to be
prescribed for the proper implementation or administration
of this
Act for which the Minister is entitled to regulate.
[37]
[49]
In conclusion, we find that the Regulation
inclusive of Regulation 5 was lawfully promulgated and are in full
force and effect.
The Rules
[50]
The
Rules were published by the National Forum.
[38]
The National forum was established under Chapter 10 of the Act as a
body corporate with full legal capacity.
[39]
The National Forum ceased to exist on 31 October 2018
when section 120(4) of the Act came in operation.
[51]
On 20 July 2018, the National Forum, in
Government Notice 401, published the Rules. The Notional Forum, in
the notice, recorded
as follows:
“
The
National Forum on the Legal Profession (“the National Forum”),
a transitional body established in terms of Chapter
10 of the Legal
Practice Act 28 of 2014 (“the Act”), hereby publishes the
Rules required by sections 95 (1), 95 (3)
and 109 (2) (a)
of the Act.
The
National Forum considered the comments received from interested
parties after publishing a draft of the Rules in Government
Gazette
No. 41419 dated 2 February 2018, as required by sections 95 (4)
and 109 (2) (b) read with sections 97 (1)
and 109 (2)
and (3) of the Act as amended by the Legal Practice Amendment Act 16
of 2017.
The
Rules will be applied by the Legal Practice Council after its
establishment in terms of Chapter 2 of the Act and will apply
to all
legal practitioners (attorneys and advocates) as well as all
candidate legal practitioners and juristic entities as defined
in the
Act
[The
National Forum’s emphasis].”
[52]
Paragraph 3.3 of the directive raises the
issue of the lawfulness of the Rules insofar as Rule 17 requires a
simultaneous lodging
of the application in terms of section 30(1)(a).
[53]
The
Bar argued that a requirement that admission applications must be
served on the LPC will defeat the objectives of the Act. The
Bar
submits
[40]
that:
“
In
this case, we respectfully submit, that the effect of an
interpretation that holds Rule 17.1 ultra vires will render
ineffective
and inefficient the processes of applying to become a
legal practitioner, taking into account:
34.1 the vast
distances that applicants would be required to traverse from their
places of residence to Johannesburg in order to
properly serve their
applications;
34.2 cost implications
for the applicants (who are invariably unemployed) or their parents;
and
34.3 rendering the
Provincial Councils completely useless.
35. The
legislature could not have intended such circumstances to prevail. We
bolster our contention by making reference to
the intended purpose of
the Act which intends to usher equal opportunities for aspirant legal
practitioners. An interpretation
that requires aspirant legal
practitioners to serve applications in Johannesburg will be oblivious
to the objects of the Act.”
[54]
The Bar’s view is sensible.
Ultimately, the answer to this question is simple. The application
under section 30 of the Act
is an application to the LPC for
enrolment. It is not an application for admission in terms of section
24 of the Act. The section
30 application is lodged with the PC’s
and the section 24 application is an application to court. A section
24 application
and a section 30 application are therefore two
different things. The outcome of the section 30 application is
dependent upon the
outcome of the section 24 application. All Rule 17
requires is that an applicant who wishes to be admitted to practise
and authorised
to be enrolled must, with his/her application in terms
of section 24 of the Act, also lodge his/her application in terms of
section
30 of the Act.
[55]
The Rules are valid and from 1 November
2018, all applications to be admitted to practise and authorised to
be enrolled must comply
with Rule 17.
REQUIREMENTS OF THE
APPLICATION FOR ADMISSION AND FOR ENROLMENT
[56]
Rule 17 sets out the requirements for
admission and for enrolment. The Rule is recited in its entirety. It
reads as follows:
“
17.1
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:
17.2.1 confirmation of
the jurisdiction of the Court;
17.2.2 his or her full
names, date of birth, identity number and residential address;
17.2.3 confirmation
that the applicant is a South African citizen or is a permanent
resident of the Republic;
17.2.4 confirmation
that the applicant has satisfied all the requirements for a degree
referred to in section 26 (1) of the
Act after pursuing for that
degree a course of study referred to in that section;
17.2.5 a statement
whether the applicant intends to be enrolled and to practise as an
attorney or as an advocate and, in the case
of an advocate, whether
the applicant intends practising with or without a fidelity fund
certificate, or whether the applicant
does not intend to practise;
17.2.6 the physical
address of his or her main office and of every branch office and of
every building at and from which he or she
practises, and its postal
address, and telephone numbers, mobile telephone numbers, fax
numbers, email addresses and other electronic
communication contact
particulars, if any;
17.2.7 in the case of
an attorney, whether he or she conducts practice—
17.2.7.1 for his or
her own account and if so, whether alone or in partnership (stating
the full names of his or her partners) or
as a member of a commercial
juristic entity (stating the full names of his or her co-members); or
17.2.7.2 as an
employee.
17.2.8 the name under
which the firm of which he or she is the proprietor or a member, or
by which he or she is employed, conducts
practice;
17.2.9 confirmation
that the applicant had no pecuniary interest in any law practice and
that he or she held no other position than
that of candidate legal
practitioner during the period of service under the contract of
practical vocational training or supervision,
or proof that the
applicant had such pecuniary interest or held such other position
with the prior written approval of the Council;
17.2.10 confirmation
that the applicant has undergone all the prescribed practical
vocational training requirements as a candidate
legal practitioner,
referred to in section 26 (1) (c) of the Act;
17.2.11 confirmation
that the applicant has passed the competency-based examination or
assessment for candidate legal practitioners,
referred to in section
26 (1) (d) of the Act;
17.2.12 confirmation
that the applicant has complied with the requirements for community
service, if applicable, where that community
service is a component
of practical vocational training by candidate legal practitioners,
pursuant to the provisions of section
29 of the Act, or proof that
the applicant has been exempted from performing community service;
17.2.13 if a period of
more than one year has elapsed between the date of completion of the
practical vocational training contract
and the date of the
application, a statement as to the activities of the applicant during
that period;
17.2.14 confirmation
that the applicant is a fit and proper person to be admitted,
including a statement as to whether—
17.2.14.1 the
applicant has any previous criminal convictions or has any criminal
investigations pending. If there have been any
proceedings as
contemplated in this sub-rule, or if any such proceedings are
pending, the applicant shall set out full details
thereof;
17.2.14.2 the
applicant has been subjected to previous disciplinary proceedings by
the Council or any law society, university or
employer, or whether
any such disciplinary proceedings are pending. If there have been any
proceedings as contemplated in this
sub-rule, or if any such
proceedings are pending, the applicant shall set out full details
thereof;
17.2.14.3
the estate of the applicant has been sequestrated, provisionally or
finally, or whether there is any application for the
sequestration of
his or her estate which is pending; where the estate of the applicant
has been sequestrated, the applicant must
state whether or not he or
she has been rehabilitated.
17.2.15 confirmation
that the originals of all attachments to the affidavit will be made
available to the Court on the date of the
hearing of the application.
17.3 A person seeking
to be admitted to practise and to be authorised to be enrolled as an
attorney must include in the affidavit
in support of the application
(in addition to any other information to be provided in terms of this
rule)—
17.3.1 confirmation
that the applicant has served under a practical vocational training
contract, stating the dates of filing and
registration of that
contract and the period served by the applicant under that contract;
17.3.2 confirmation by
the applicant that his or her principal was entitled to enter into
the contract of practical vocational training;
17.3.3 confirmation by
the applicant that service under the contract of practical vocational
training was performed under the direct
supervision of the principal
or of another attorney in the firm of the principal;
17.3.4 confirmation
that the applicant was not absent for more than 30 working days
during any one year of service under the contract
of practical
vocational training;
17.3.5 confirmation by
the applicant of the exact dates served under the practical
vocational training contract;
17.3.6 a statement as
to the type of legal experience gained by the applicant whilst
serving under the contract of practical vocational
training.
17.4 An applicant for
admission to practise and to be authorised to be enrolled as an
attorney shall attach to his or her application
a supporting
affidavit by the applicant’s principal containing the following
information—
17.4.1 confirmation of
the exact dates that the applicant served under his or her
supervision or that of another attorney in terms
of the contract of
practical vocational training;
17.4.2 in relation to
the principal—
17.4.2.1 a statement
that he or she—
17.4.2.1.1 has been
practising as an attorney for his or her own account or as a partner
in a firm of attorneys or as a member of
a professional company
continuously for three years or for periods of three years in the
aggregate during the preceding four years;
or
17.4.2.1.2 has
practised as a professional assistant in a firm for a period of five
years within the preceding six years; or
17.4.2.1.3 has
practised as a professional assistant in a firm for a period of two
years in the preceding five years and has practised
as an attorney
for his or her own account or as a partner in a firm or as a member
of a professional company continuously for two
years or for periods
of two years in the aggregate during the preceding four years at the
date of commencement of the contract
of practical vocational
training;
17.4.2.2 where the
applicant has undergone practical vocational training with a law
clinic or with Legal Aid South Africa, or with
another entity
accredited by the Council to provide practical vocational training,
that his or her principal is or at all relevant
times was in the full
time employment of the law clinic or of Legal Aid South Africa or
with such other entity, and has practised
as an attorney or advocate,
as the case may be continuously for three years, or for periods of
three years in the aggregate during
the preceding four years, prior
to the date of commencement of the practical vocational training
contract;
17.4.2.3 where the
applicant has undergone practical vocational training with the State
Attorney, that his or her principal has
practised the profession of
an attorney as the State Attorney, Deputy State Attorney, Senior
Assistant State Attorney or Assistant
State Attorney in the office of
the State Attorney or any branch thereof continuously for four years
at the date of commencement
of the practical vocational training
contract;
17.4.3 that he or she
has continued to practise as aforesaid during the period of the
contract of practical vocational training;
17.4.4 that he or she
was at no time during the course of the contract of the practical
vocational training in question a principal
to more than three
candidate attorneys, or where the principal was employed at a law
clinic or at Legal Aid South Africa that he
or she was at no time
during the course of the contract of the practical vocational
training in question a principal to more than
six candidate
attorneys;
17.4.5 confirmation
that in his or her view the applicant is a fit and proper person to
be admitted and enrolled as an attorney.
17.5 An applicant for
admission to practise and to be authorised to be enrolled as an
advocate shall attach to his or her application
(in addition to any
further information to be included in terms of this rule) a
supporting affidavit by the applicant’s training
supervisor
containing the following information—
17.5.1 confirmation
that he or she is a practising advocate, or has been accredited by
the Council to act as a training supervisor
of pupils for purposes of
practical vocational training or is employed by an entity which has
been accredited to provide supervisors
who are qualified to act as
training supervisors to pupils;
17.5.2 confirmation of
the exact dates that the applicant served under the supervision of
his or her training supervisor;
17.5.3 confirmation
that in his or her view the applicant is a fit and proper person to
be admitted and enrolled as an advocate.
17.6 Copies of the
following documents must be attached to the founding affidavit of the
applicant, whether for admission as an
attorney or as an advocate,
and must be certified as being true copies of the originals by a
notary public or by a commissioner
of oaths—
17.6.1 identity
document of the applicant;
17.6.2 where the
surname of the applicant does not correspond with the applicant’s
name in the application, or with any other
documents attached to the
application, a marriage certificate or other proof to reflect the
reason for the discrepancy;
17.6.3 degree
certificate or certificates of the applicant;
17.6.4 the relevant
practical vocational training contract (in the case of an application
for admission as an attorney) or written
confirmation that the
applicant has registered with a person or entity accredited by the
Council to supervise the practical vocational
training of pupils (in
the case of application for admission as an advocate);
17.6.5 written
confirmation from the Council confirming that the contract of
practical vocational training or of supervision, as
the case may be,
has been registered with the Council;
17.6.6 where
applicable, an agreement relating to the cession of the contract if
practical vocational training and written confirmation
from the
Council that the cession of the contract has been registered;
17.6.7 in the case of
an application for admission as an advocate intending to practise
with a Fidelity Fund certificate, proof
that the applicant has
satisfied the requirements of the Council in terms of section
85 (1) (b) of the Act in relation
to a legal practice
management course, and has passed the examination required to be
passed by attorneys so as to reflect that
the applicant has the
required knowledge of accounting for the keeping of accounting
records referred to in section 87 of the Act
and for compliance with
the accounting rules published by the Council from time to time;
17.6.8 attendance
report issued in respect of attendance of the applicant at a
practical legal training course approved by the Council.
17.7 The original and
two copies of the application must lie for inspection with the
Council for a period of not less than one month.
The application must
be properly prepared and bound with an index, all pages of the
application must be paginated at the top right
hand corner of every
page, and all attachments must be clearly marked when the application
is served on the Council.
17.8
The Council may require that the information referred to in this rule
17
be
submitted in a form to be determined by the Council.
17.9
An application in terms of this rule
17
must
be accompanied by proof of payment of the fee payable in terms of
rule 2.
17.10 Subject to
compliance with rules 27.1 to 27.9, and upon receipt by the Council
of a copy of an order by the High Court admitting
the applicant to
practise and authorising him or her to be enrolled as a legal
practitioner, the Council shall place the name of
the applicant on
the roll of attorneys or of advocates, or on the roll of
non-practising attorneys or advocates, as the case may
be, to be kept
in terms of rule 28.
17.11 The Council must
cause to be enrolled as an attorney or as an advocate, as the case
may be, every person who is to be regarded
in terms of section
114 (1) of the Act as having been admitted to practice as an
attorney or as an advocate, subject to any
condition imposed by the
High Court in relation to the admission of that person and subject to
the terms of any order of court
whereby any such person has been
suspended from practice as an attorney or as an advocate, as the case
may be.”
[57]
Persons applying to practice as legal
practitioners all, irrespective of whether they wish to be admitted
as attorneys or advocates,
must comply with the provisions of Rule
17.1 to 17.2.6, 17.6.8 to 7.2.15, 17.7 and 17.9.
[58]
Prospective attorneys
must
include in the affidavit in support of their application the items
listed in Rule 17.3 to 17.4.5. Prospective advocates, must
in
addition, comply with Rules 17.5 to 17.5.3. Rules 17.10 and 17.11 are
obligations on the LPC.
[59]
Compliance
with these requirements must appear from the evidence before the
court when hearing the application. The court hearing
an application
must satisfy itself that all the requirements in sections 24 and 26
of the Act and Rule 17 have been met by the
applicant.
[60]
The
manner in which an applicant shows compliance is through primary and
secondary facts. Primary facts are evidence which in admission
applications are disclosed on affidavit. Secondary facts are
presented through documents that are presented to court, whether they
form part of the annexures to the affidavit or not. Secondary facts
might include proof of service upon those that must be served
with
the section 24 and section 30 applications, the documents referred to
in sub-rules 17(2) and 17(6). Where the words “confirmation”
or “confirm” or “statement” is used in the
Rule, that which must be confirmed or stated must be confirmed
or
stated under oath, obviously, in the founding affidavit or affidavits
that must accompany the application to court.
[61]
Prospective legal practitioners and those
who guide and assist them are referred to what Jacobs AJ said in
Ex
Parte: Gawula (31371/2019) [2019] ZAGPPHC 310 (4 July 2019)
:
“
[6]
In
the assessment of evidence our Courts distinguish between primary
facts and secondary facts. Secondary facts do not constitute
evidence. Inference and conclusions can only be drawn from primary
facts in the context of legal principles. Along these principles
a
Court considering an application for the admission of a legal
practitioner is obliged to make a value judgment on the primary
evidence placed before it when asked to conclude that an applicant is
a fit and proper person to practise as an officer of the
Court.
[7]
The sole question a Court has to consider when it considers an
application for admission of a legal practitioner is whether
the
facts placed before the Court show the applicant to be of such a
character that he or she is worthy to be in the ranks of an
honourable profession. ……… The question of a
person's fitness to practise as a legal practitioner is one of
discretion. The discretion of the Court in this regard is unfettered
under common law and in terms of the LPA.”
[Footnotes omitted]
[62]
Finally, we impress upon applicants in
admission applications that the prayer for admission (either as
attorney, advocate, conveyancer
or notary) in the Notice of Motion
must read as follows:
“
That
the applicant be admitted to practice and authorized to be enrolled
as a legal practitioner (attorney)
[or
advocate
,
or
conveyancer
,
or
notary
,
as the case may be].
[63]
We make no order as none is required in
light of the ultimate orders that were already made in the
applications that were before
us.
__________________________
JH
ROELOFSE AJ
I
agree and it is so ordered.
___________________
MF
LEGODI JP
DATE
OF HEARING: 28 October 2019
DATE
OF JUDGMENT: 13 December 2019
APPEARANCES
FOR
THE APPLICANTS:
SEYMORE
DU TOIT AND BASSON ATTORNEYS MT SILINDA ATTORNEYS INC.
Adv.
T Ngwenya
Mr.
Matlala
LEGAL
AID BOARD SOUTH AFRICA
Mr.
Sing
FOR
THE SOUTH AFRICAN LEGAL PRACTICE COUNCIL AND THE MPUMALANGA
PROVINCIAL LEGAL PRACTICE COUNCIL:
Adv.
Richard Moultrie and Adv. Ziyaad Minty
Instructed
by Damons Magardie Richardson Attorneys
FOR THE MPUMALANGA
SOCIETY OF ADVOCATES:
Adv. M Makoti and Adv. S
Lubisi
[1]
Act
No. 28 of 2014.
[2]
In
terms of Section 30 of the Act.
[3]
In
terms of Section 24 of the Act.
[4]
Section
1 of the Act defines a ‘legal practitioner’ as “…
.an
advocate or attorney admitted and enrolled as such in terms of
sections 24 and 30
[of
the Act]
,
respectively”
.
[5]
Parts
1 and 2 of Chapter 10 came into operation on 1 February 2015.
Chapter 2 (except for section 14) came into operation
on 31 October
2018. Chapter 1, Chapter 3, with the exclusion of sections 35 (1),
(2), (3) and (7) up to and including (12), Chapter
4 with the
exclusion of sections 37 (5) (e) (ii), 40 (1) (b) (ii) and (7) (b),
41 and 42, Chapters 6 and 7, Chapter 8, with the
exclusion of
section 93 (5), Chapter 9, with the exclusion of section 95 (2) and
Parts 3 and 4 of Chapter 10 came into operation
on 1 November 2018.
See: Section 120 of the Act; Proclamation No. R.2 in Government
Gazette 38412 on 23 January 2015 and Proclamation
R.31 in Government
Gazette 42003 on 29 October 2018.
[6]
The
South African Legal Practice Council.
[7]
The
Regulation of Legal Practitioners and Candidate Legal Practitioners.
[8]
Rules
and Regulations.
[9]
National
Forum and Transitional Provisions.
[10]
Under
Case No. 2313/19.
[11]
Natassja
Mostert, Kate Nonkululeko Lwandile, Thembisile Promise Motha, Sonto
Cynthia Mdluli.
[12]
The
provisions of the Act apply to the applications because they were
filed after 1 November 2018.
[13]
Their
applications were to be considered in terms of the new scheme.
[14]
Legodi
JP and Kgoele J sitting.
[15]
Paragraph
2 of the judgment.
[16]
The
applicants’ legal practitioners, the Mpumalanga Provincial
Council, the Mpumalanga Society of Advocates and the South
African
Legal Council shall be referred to as “
the
directed parties
”
.
[17]
In
respect of Ex parte Steyn (2313/19), Ex parte Mostert (2748/19) and
Ex parte Lwandle (2749/2019).
[18]
The
LPC filed its heads of argument also on the Mpumalanga Council’s
behalf.
[19]
In Ex
parte Motha (1623/19).
[20]
Paragraph
12 of Mr. Stemmett’s affidavit at page 6 thereof.
[21]
The
Minister of Minister of Justice and Constitutional Development: The
definition of ‘minister’ under section 1 of
the Act.
[22]
GN
401 of 20 July 2018: Final rules as per section 95 (1),
95 (3) and 109 (2) of the Act (
Government
Gazette
No.
41781)
[23]
Ex
Parte Ceko (2140/19), Ex Parte Ngwenya (2588/19); Ex Parte Thobela
(3054/19); Ex Parte Mabuza (2136/19); Ex Parte Sifunda (3043/19)(
Mr. Sifunda applied to be admitted as an advocate in terms of his
notice of motion.); Ex Parte Mnisi (4011/19); Ex Parte Maphanga
(2078/19) and Ex Parte Nkosi (3366/19).
[24]
The
Attorneys Act No. 53 of 1979 (“the Attorneys Act”) and
the Admission of Advocates Act No. 74 of 1964 (“the
Advocates
Act”). Both of these acts were repealed by section 119(1) of
the Act with effect from 1 November 2018.
[25]
“
15.
Admission and re-admission of attorneys.—(1) Unless
cause to the contrary to its satisfaction is shown,
the court shall
on application in accordance with this Act, admit and enrol any
person as an attorney if—
(a)
such person, in the discretion of the court,
is a fit and proper person to be so admitted and enrolled; and
(b)
the court is satisfied that such person has
satisfied the following requirements or, where applicable, has been
exempted therefrom
in terms of the provisions of this Act, namely
that such person—
(i)
is 21 years of age or older;
(ii)
(aa) is a South African citizen or has
been lawfully admitted to the Republic for permanent residence
therein and is ordinarily
resident in the Republic; or
(bb)is a citizen of a
state the territory of which formerly formed part of the Republic,
and belongs to such category of persons,
and complies with such
conditions, as may be determined by the Minister, after consultation
with the presidents of the various
societies, by notice in the
Gazette;
(iii)
(aa) has satisfied
all the requirements for the degree referred to in paragraph (a) of
section 2(1), or for the degrees referred
to in paragraph (aA) of
that section, after pursuing for that degree or degrees a course of
study referred to in paragraph (a)
or (aA) of that section, as the
case may be; or
(bb) has satisfied
all the requirements for a degree or degrees referred to in
paragraph (aB) of section 2 (1) in respect of which
a certification
in accordance with that paragraph has been done; or
(cc) has previously
been admitted as an advocate.
(iv)
has passed the practical examinations referred to in section 14 (1)
(a), (b) and (c);
(ivA)
(aa) during his or
her term of service under articles or contract of service, or after
the expiry of his or her articles or contract
of service; or
(bb) after he or she
has been exempted in terms of this Act from service under articles
of clerkship, has attended a training
course approved by the society
having jurisdiction in the area in which he or she completed his or
her service under articles
or contract of service, or, in the case
of section 2A (c), has attended a training course approved by the
society having jurisdiction
in the area in which the candidate
attorney intends to practise, and has completed such training course
to the satisfaction of
that society: Provided that this subparagraph
shall not apply to a person who attended a training course referred
to in section
2 (1A) (a) or 2A (a) (i) and who has completed such
course to the satisfaction of the society concerned; and
(v)
. . . . . .
(vi)
completed his or her service under articles or contract of service,
or has complied with the provisions of section 2 (1A),
within the
period of three years preceding his or her application to the court
or within the further period allowed by the court
in terms of
subsection (2).”
[26]
The
definition of “society” in section 1 read with section
54 of the Attorneys Act.
[27]
Section
3
of the
Admission of Advocates Act, in
relevant part, provided as
follows:
“
Admission
of persons to practice as advocates.—(1) Subject to the
provisions of any other law, any division shall
admit to practice
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) in the case of
any person who has at any time been admitted to practise as an
attorney in any court in the Republic or elsewhere,
that his name
has been removed from the roll of attorneys on his own application;
and
(e)
. . . . . .
(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
(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
(ii) has satisfied
all the requirements for a degree or degrees of a university in a
country which has been designated by the
Minister, after
consultation with the General Council of the Bar of South Africa, by
notice in the Gazette, and in respect of
which a university in the
Republic with a faculty of law has certified that the syllabus and
standard of instruction are equal
or superior to those required for
the degree of baccalaureus legum of a university in the Republic;
(b) any person who
before the commencement of this Act passed any examination or
satisfied all the requirements for any degree
which in terms of any
law repealed by section thirteen would immediately before such
commencement have entitled him to be admitted
to practise as an
advocate of any division on compliance with any other requirement of
the said law with regard to matters other
than such examination or
degree;
(c) any person who—
(i) at the
commencement of this Act was registered as a student at a university
referred to in section one of the Admission
of Advocates Act,
1921 (Act No. 19 of 1921), and was engaged in a course of study with
a view to obtaining a certificate, diploma
or degree referred to in
the said section; and
(ii) has satisfied
all the requirements for the said certificate, diploma or degree and
has on or before the thirty-first day
of December, 1974, passed the
examination in Roman-Dutch law and the statute law of the Republic
referred to in section two of
the said Act or is in terms of the
said section not required to pass the examination in both or either
of the said subjects;
(d) any person who—
(i) at the
commencement of this Act was registered as a student at any
university or university college in the Republic for the
degree of
baccalaureus legum; and
(ii) has satisfied
all the requirements for the said degree;
(e) any person who—
(i) at the
commencement of this Act was registered as a student at any
university or university college in the Republic for a
degree in any
faculty and was engaged in a course of study for such degree, the
successful completion of which would in accordance
with the
regulations of such university or university college then in force,
entitled him to be exempted from a portion of the
examination for
the degree of baccalaureus legum; and
(ii) has satisfied
all the requirements for the said degree and the said degree of
baccalaureus legum.
(3) …….”
[28]
These
documents included the Notice of Set Down, the application,
certification of the applicant’s identity document and
if
he/she previously was admitted or practiced as an attorney, submit
to the registrar a certificate from the law society of
the province
in which he was so admitted or practiced to the effect that, in the
opinion of the law society concerned, he is
a fit and proper person.
[29]
2019
(3) SA 489
(GJ) at para. 8. Also see: Ex Parte: Mokoena (26189/2019)
[2019] ZAGPPHC 256 (27 June 2019)
[30]
Under
section 1, ‘Council’ [LPC] means the South African Legal
Practice Council established in terms of section 4.
[31]
Those
sub-sections read as follows:
“
(a)
community service as a component of practical vocational training by
candidate legal practitioners; or
(b) a minimum period
of recurring community service by practising legal practitioners
upon which continued enrolment as a legal
practitioner is dependent.
(2) Community service
for the purposes of this section may include, but is not limited, to
the following:
(a) Service in the
State, approved by the Minister, in consultation with the Council;
(b) service at the
South African Human Rights Commission;
(c) service, without
any remuneration, as a judicial officer in the case of legal
practitioners, including as a commissioner in
the small claims
courts;
(d) the provision of
legal education and training on behalf of the Council, or on behalf
of an academic institution or non-governmental
organisation; or
(e) any other service
which the candidate legal practitioner or the legal practitioner may
want to perform, with the approval
of the Minister.”
[32]
The
Notional Forum was established in terms of section 96, clearly
intended as an interim body which ceased to exist on the date
of the
meeting with the Council as envisaged in section 105 (3), which date
may not be later than 31 October 2018. Sub-section
(3) of
section 105 of the Act, in relevant part, reads as follows: “
The
National Forum must, before its dissolution, meet with the Council
contemplated in section 4 for the purposes of handing over
.”
[33]
Paragraph
12 of Mr. Stemmett’s supplementary affidavit.
[34]
The
Bar sets out why the regulation is lawful in paragraphs 19 to 25 of
their heads of argument. The LPC sets out the lawfulness
of the
regulation in paragraphs 7 to 14 and 16 of their heads of argument.
[35]
Paragraph
4.1 of their heads of argument.
[36]
Section
3(b)(ii) reads as follows:
“
[The
purpose of this Act is to broaden access to justice by putting in
place (iii) measures that provide equal opportunities for
all
aspirant legal practitioners in order to have a legal profession
that broadly reflects the demographics of the Republic;”
[37]
Section
94(1)(p).
[38]
GN
401 of 20 July 2018: Final rules as per section 95 (1), 95 (3)
and 109 (2) of the Act. (Government Gazette No. 41781)
[39]
Section
96 of the Act.
[40]
In
paragraphs 34 and 35 of its heads of argument.