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[2019] ZAKZPHC 6
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Independent Institute of Education (Pty) Ltd v KwaZulu-Natal Law Society and Others (9090/18) [2019] ZAKZPHC 6; [2019] 2 All SA 399 (KZP); 2019 (4) SA 200 (KZP) (22 February 2019)

IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION,
PIETERMARITZBURG
Case no. 9090/18
In
the matter between:
INDEPENDENT INSTITUTE OF
EDUCATION (PTY) LTD
Applicant
and
THE KWAZULU-NATAL LAW SOCIETY
First Respondent
THE LAW SOCIETY OF SOUTH AFRICA
Second Respondent
The minister of justice and
constitutional development
Third Respondent
THE MINISTER FOR HIGHER
EDUCATION AND TRAINING
Fourth Respondent
THE SOUTH AFRICAN QUALIFICATIONS
AUTHORITY
Fifth Respondent
THE COUNCIL ON HIGHER EDUCATION
AND TRAINING
Sixth Respondent
THE NATIONAL FORUM ON THE LEGAL
PROFESSION
Seventh Respondent
THE GENERAL COUNCIL OF THE BAR
Eighth Respondent
The cape Law Society
Ninth Respondent
The law society of the free
state
Tenth Respondent
The law society of the northern
provinces
Eleventh Respondent
Nelson Mandela University
Twelfth Respondent
University of Kwazulu-Natal
Thirteenth Respondent
University of Pretoria
Fourteenth Respondent
University of Johannesburg
Fifteenth Respondent
University of Venda
Sixteenth Respondent
Rhodes University
Seventeenth Respondent
University of the Western Cape
Eighteenth Respondent
University of Cape Town
Nineteenth Respondent
University of Stellenbosch
Twentieth Respondent
University of Witwatersrand
Twenty-First Respondent
University of Fort Hare
Twenty-Second Respondent
North West University
Twenty-Third Respondent
University of the Free State
Twenty-Fourth Respondent
University of Limpopo
Twenty-Fifth Respondent
University of Zululand
Twenty-Sixth Respondent
Walter Sisulu University
Twenty-Seventh Respondent
University of South Africa
Twenty-Eighth Respondent
ORDER
1.
The
9
th
to 11
th
and 12
th
to 28
th
respondents respectively are joined as additional respondents in this
matter.
2.
Section
26(1)(a)
of the
Legal Practice Act 28 of 2014
is hereby declared
constitutionally invalid insofar as the use of the word “university”
to exclude private Higher Education
Institutions duly accredited and
registered to provide the LLB degree;
3.
The
students that graduate with an LLB degree offered by the applicant
after 1 January 2018, are as qualified to enter the practice
of the
legal profession as graduates from public universities in South
Africa.
4.
The
applicant is ordered to pay the costs incurred by the first
respondent up to and including the adjournment of18 September 2018,

such costs to be on the opposed motion scale
5.
There
is no order as to the costs from 26 September 2018 up to 31October
2018.
6.
The
third respondent is directed to pay the costs of the applicant from 1
November 2018.
JUDGMENT
Sibiya
AJ
Introduction
[1]
The application before this court concerns the status of the LLB
degree offered by Varsity
College. The legislation regulating the
admission of legal practitioners for practice as an attorney or
advocate allows such admission
only to those candidates with an LLB
degree from a university.Varsity College, although registered and
duly accredited, is not
a university.
[2]
The applicant, is the Independent Institute of Education (which will
be referred to as
‘the IIE’) and was registered in terms
of section 54(1)(c) of the Higher Education Act 101 of 1997 (the
Higher Education Act) as
amended, in 2007 as a private higher
education institution. It provides higher education in 21 campuses
throughout South Africa
under the following brands: VEGA school,
Rosebank College, The Design School Southern Africa and Varsity
College.
[3]
The IIE offers qualifications at graduate and post graduate level,
and is, through its
aforesaid registration, entitled to offer
diplomas, certificates and degrees in accordance with its
accreditation.
[4]
In May 2017,the Council on Higher Education, the sixth respondent,
which is the body responsible
for accrediting programmes of higher
education in the country, duly accredited the IIE was to provide the
LLB degree (bachelor
of laws). This followed after the proposed LLB
programme had been assessed and peer reviewed by the Accreditation
Committee of
the Higher Education Quality Committee of the sixth
respondent and found to be on par with the LLB degrees offered by
universities.
[5]
In October 2017 the IIE was registered to offer the LLB degree at NQF
level 8 by the fifth
respondent, the South African Qualifications
Authority (SAQA), the statutory body responsible for qualification
standards set by
the Minister of Higher Education, the fourth
respondent, in terms of the National Qualifications Framework Act 67
of 2008 (the
Framework Act). This followed the IIE’s submission
for registration that had been submitted in July 2016. On page 3 of
the
submission,one of the stated purposes of the qualification is to
prepare students for a career in professional legal practice,
including practice as an advocate, attorney and prosecutor.
[6]
The IIE duly started offering the LLB degree at 6 (six) of its
Varsity College campuses
in the 2018 academic year, registering
approximately 200 first year students. However, as early as 19
January 2018, the first respondent,
the KZN Law Society, in response
to a query from one of the parents, indicated that the LLB offered by
the IIE does not meet the
requirements for admission as an attorney
in terms of section 2(1) of the Attorneys Act 53 of 1979
[1]
(the Attorneys Act).
[7]
This was because the Attorneys Act provides that an LLB obtained from
a
university
qualifies one for articles of clerkship, which
were a prerequisite for admission as an attorney, and neither the
applicant nor
its Varsity Colleges are a university. Another reason
advanced by the KZN Law Society was that as recently as November 2017
the
Council on Higher Education had listed all the institutions with
an accredited LLB programme and the applicant was not listed as
such
an institution.
[8]
Although the accreditation of the applicant has since been verified
and confirmed, and
thus is no longer an issue, what remains
contentious is the exclusion of the applicant’s prospective LLB
graduates from qualification
as legal practitioners, on the basis
that it is not a university. The KZN Law Society maintains that it is
merely applying the
law as it stands, which it says does not
differentiate, while the applicant contends that the law being
applied is unconstitutional
for excluding the applicants and its LLB
students, and should be set aside. That is the case that this court
is called to decide.
The
nature of the application
[9]
Put differently, the issue to be decided is: does section 26(1) of
the Legal Practice
Act 28 of 2014 (Legal Practice Act) infringe the
rights to equality before the law in terms of section 9(1), to
freedom of trade,
profession and occupation in terms of section 22,
and to establish private education institutions in section 29(3) of
the Constitution
of the Republic of South Africa, 1996? If so, is
such infringement reasonable and justifiable in terms of section 36
of the Constitution?
[10]
There is no dispute that the applicant is a duly established private
Higher Education Institution,
and that it has been registered and
accredited by the SAQA to offer the four year LLB degree. It is also
not disputed that the
applicant’s LLB is on par with that
offered at universities and that it offered the LLB degree at a first
year level in 2018.
Finally, that the applicant is not a university
as defined in terms of the
Higher Education Act.
[11
]
The issue of constitutionality was not the
original case presented for argument by the applicant when it
initially
brought this application.
[2]
I
will deal with the metamorphosis of the case when I deal with the
issue of costs, in the latter part of the judgment. At this
stage it
is sufficient merely to note that the applicant, first respondent and
the Minister of Justice all changed their stances
as the case
progressed.
[12]
Following the judgment of Koen J delivered on 25 September 2018;
[3]
the applicant issued an Amended Notice of Motion accompanied by a
Rule 16A
Notice, amending the relief being sought. These notices also
served as a makeshift joinder of the ninth to the twenty-eighth
respondents,
comprising the law societies and public universities.
Pursuant to this ‘joinder’ there has been no opposition
in addition
to that of the KZN Law Society, other than by the Cape
Law Society (ninth respondent), which subsequently withdrew this
opposition
on 5 December 2018.
[13]      The
relief sought by the applicant in its Amended Notice of Motion, as
further amended on the
date of the hearing of this application, is an
order:
1.
That the 9
th
to 11
th
, and 12
th
to
28
th
respondents respectively are joined as additional
respondents in this matter.
2.
Declaring that the reference to the word “university”
where it appears in section 26(1) of the Legal Practice Act
28 of
2014:
(a)
is declared unconstitutional and invalid to the extent that it fails
to include private Higher Education Institutions registered
in terms
of the
Higher Education Act 101 of 1997
and which are accredited and
registered to provide a LLB degree approved by the South African
Qualifications Authority;
(b)
the declaration of invalidity in paragraph 2(a) is suspended for a
period of 12 months to permit Parliament to remedy the defect;
(c)
during the period of suspension in 2(b):
(i)
the words in
section 26(1)(a)
are to include, immediately following
the words “any university registered in the Republic”,
the words, “or any
private Higher Education Institution
registered in terms of the Higher Education Act101 of 1997 which is
registered and accredited
to provide a LLB degree recognised by the
South African Qualifications Authority established by the
National
Qualifications Framework Act, Act
67 of 2008” and
(ii)
the words in
section 26(1)(a)(ii)
are to include, immediately
following the word “university”, the words “or
private Higher Education Institution
registered in terms of the
Higher Education Act 101 of 1997...”
(iii)
should Parliament fail to enact remedial legislation within the
period of suspension, the interim reading in remedy set out
in
paragraph 2(c) shall become final.
3.
Declaring that graduates from the applicant’s SAQA approved LLB
degree are as qualified to enter the practice of the legal
profession
as are graduates from the same LLB degree offered at public
universities in South Africa which are accredited to do
so.
4.
Alternatively to paragraph 3 and/or in addition to paragraph 3:
Reviewing
and setting aside the decision of the first respondent, the
KwaZulu-Natal Law Society, taken on or about 19 January 2018,

confirmed during 27 March 2018 to 4 April 2018, and which decision
continues notwithstanding the repeal of section 2(1) of the
Attorneys
Act 53 of 1979, to refuse to recognise the applicant’s LLB
degree as sufficient for entry into the attorney’s
profession.
5.
Directing the third respondent, the Minister of Justice and
Constitutional Development to pay the costs of this application
including the costs of two counsel, jointly and severally with the
KwaZulu-Natal Law Society, the first respondent.
6.
Further, other or alternative relief.
[14]      At
the hearing of this case the applicant pinned its colours to the mast
and focussed its argument,
both orally as well as in its heads of
argument, on the constitutionality challenge. However, ithas not
abandoned the review of
what it terms the ‘decision’ of
the KZN Law Society, to refuse to recognise the applicant’s LLB
degree as sufficient
for entry into the attorney’s profession.
In fact, the applicant, in the supplementary affidavit filed in
October 2018 reserved
its rights to appeal the decision of Koen J.
[15]      In
order to resolve the issue before me the following questions have to
be considered:
1. Is the word “university”
in the impugned provision capable of an interpretation that includes
the applicant?
2. If the word “university”
is not capable of such interpretation, does the impugned legislation
infringe or limit the
rights in section 9, 22 and/or 29(3)?
3. If so, is the limitation reasonable
and justifiable in terms of Section 36?
4. If it is not then it is arbitrary
and unconstitutional, and falls to be set aside, what then is the
appropriate relief?
Meaning of “university”
[16]
Section 39 enjoins the courts to read legislation in a manner that
most conforms with the Constitution,
and only declare legislation
unconstitutional if it is incapable of such other interpretation.
This was the basis on which the
applicant had sought the relief in
the original application.However, the KZN Law Society submitted that
this step only comes in
once there is first a declaration of
invalidity, that this is a second/final step after a declaration of
invalidity. Koen J made
no finding in this regard, merely indicating
that the applicant may amend its papers ‘if so advised’.
[17]
The applicant referred this court to the case of
Cool
Ideas 1186 CC v Hubbard and another
[4]
where the Constitutional Court framed the process of statutory
interpretation in this way (references removed):
‘
[28]
A fundamental tenet of statutory interpretation is that the words in
a statute must be given their ordinary grammatical meaning,
unless to
do so would result in an absurdity. There are three important
interrelated riders to this general principle, namely:
(a)
that statutory provisions should always be interpreted purposively;
(b)
the relevant statutory provision must be properly contextualised; and
(c)
all statutes must be construed consistently with the Constitution,
that is, where reasonably possible, legislative provisions
ought to
be interpreted to preserve their constitutional validity. This
proviso to the general principle is closely related to
the purposive
approach referred to in (a).’
[18]
The ordinary meaning of the word ‘university’ according
to the
Oxford
English Dictionary
is
’a high-level educational institution in which students study
for degrees and academic research is done’.
[5]
The LPA does not define ‘university’, neither did its
predecessors, the Attorneys Act and the
Admission of Advocates Act 74
of 1964
, and rightly so, as this is the purview of the Minister for
Higher Education. The primary legislation defining university is the
Higher Education Act.
[19
]      I
was urged by the KZN Law Society to not lose sight of the fact that
the
Higher Education Act has
, through the years, maintained the
distinction between various types of higher education institutions,
and in particular between
private higher education institutions and
universities.
[20]      The
latest amendments to the definitions in the
Higher Education Act were
enacted through the Higher Education Amendment Act 9 of 2016, which
came into effect in September 2017 (2017 Amendment). Prior
to this
amendment, the
Higher Education Act, which
can be referred to as ‘new
order legislation’ since it was promulgated after the advent of
the Constitution, defined
‘university’ as ‘any
university established, deemed to be established or declared as a
university under this
Act’. This means that it wasn’t a
‘free for all’ but that an institution had to be
established, deemed
or declared prior to being called a ‘university’.
It further classified ‘higher education institution’ into

‘college’, ‘technikon’ and ‘university’.
[21]
After the 2017 Amendment, ‘university’ is defined in the
Higher EducationAct as
‘
a
higher education institution providing higher education and with a
scope and range of operations, including undergraduate and

postgraduate higher education programmes, research and community
engagement, which meets the criteria for recognition as a university

as prescribed by the Minister under section 69(d) and
(a)
…
(b)
registered
as a private university, in terms of this Act.’
[22]
Although the Minister for Higher Education has not explained the
reasons for the distinction
between the various higher education
institutions in general, and universities in particular, the
distinction has survived various
amendments and cannot be simply
wished away. It was in place even at the first enactment of the
Higher Education Act, despite
such Act being referred to by the
applicant’s representative as ‘new order’
legislation.
[23]      For
these reasons the answer to the question whether ‘university’
can be read to
include the applicant, must be in the negative. The
KZN Law Societycan therefore not be faulted for its failure to give a
different
and wider meaning to the concept of university. The
‘decision’ did not ignore the provisions of the Higher
EducationAct,
it in fact applies them, given that the Act maintains
the distinction between various types of higher education
institutions.
Does section 26(1) of the LPA
infringe or limit the rights in section 9, 22 and 29(3) of the
Constitution?
Section 29(3): the right to
establish private education institutions
[24]
Section 29(3) provides that
‘
Everyone
has the right to establish and maintain, at their own expense,
independent educational institutions that –
(a)
do
not discriminate on the basis of race;
(b)
are
registered with the state; and
(c)
maintain
standards that are not inferior to standards at comparable public
educational institutions.’
[25]      The
applicant contends that this right is conferred on it as it is duly
registered and accredited
in terms of the
Higher Education Act, does
not discriminate on the basis of race, and provides standards
equivalent to those provided at public educational institutions.
The
applicant further relies, for support of its argument, on the letter
from the Minister for Higher Education, in which the Minister

confirms that private higher education institutions, once registered,
enjoy the same rights as public universities to offer the
LLB degree,
once accredited. The failure of
section 26(1)
of the
Legal Practice
Act to
encompass the applicant and its four-year LLB degree violates
section 29(3)
of the Bill of Rights in failing to give effect to this
right.
[26]      I
find that, having shown that the applicant meets the criteria set out
in
section 29(3)
and those in Chapter 7 of the
Higher Education Act,
the
applicant enjoys the same rights to offer the accredited four
year LLB as public universities, and its exclusion from
section
26(1)(a)
of the
Legal Practice Act, limits
this right.
Section 9(1)
the right to
equality before the law
[27]
Section 9(1)
provides
‘
Everyone
is equal before the law and has the right to equal protection and
benefit of the law.’
The applicant contends that there is
no rational basis for the distinction between the applicant’s
LLB students and those
from public universities, or that between the
applicant and public universities equally authorised to teach the
four year LLB degree.
[28]      The
first respondent argues that the applicant makes no case for the
unfair discrimination directly
or otherwise on any of the grounds in
subsection 9(3) – which discrimination would be automatically
unfair. There is no dispute
that the applicants and its students have
the right to equal protection and benefit of the law. However, such
benefit cannot be
claimed where the applicant itself has not fully
complied with the law.
[29]
While the submission by the KZN Law Society is true in principle, the
alleged failure to comply
with the law is in the failure to apply for
registration as a private university in terms of the amendment to the
definition of
‘university’. This failure is conceded by
the applicant, but the reason therefore is given as being that the
Minister
of Higher Education has not put in place the measures to
give effect to this new definition.  At the hearing of this
matter,
it was submitted that the amendment does not apply to the
applicant because it was registered prior to the amendment. I find no

merit in this argument.
[30]      The
impugned provision clearly differentiates between public universities
and private higher
education institutions that have been duly
accredited to offer the LLB degree by the relevant structures, in
general, and the applicant
and its students in particular. In further
support of the argument that this limitation is unconstitutional the
applicant takes
umbrage at the fact that
section 26(1)(b)
of the
Legal Practice Act recognises
an LLB obtained from a foreign country
provided it is recognised by the SAQA established by the Framework
Act, yet refuses to recognise
it’s LLB, when it is an
institution fully compliant with the South African education
legislation.
[31]      The
thrust of the applicant’s argument is that it is inequitable
and irrational for the
lawmakers to make provision for the
recognition of a foreign LLB degree acceptable to SAQA, when the
applicant’s LLB, is
one approved by SAQA, and the applicant is
registered in terms of the
Higher Education Act in
this country, but
rejected on the basis that it is not classified as a university.
[32]
The relevant test in dealing with
section 9(1)
was reiterated bythe
Constitutional Court in
Weare
v Ndebele
[6]
as
follows:
‘
The
test for determining whether
s 9(1)
is violated was set out by the
court in
Prinsloo
v Van der Linde
and
Harksen
v Lane.
[7]
A
law may differentiate between classes of persons if the
differentiation is rationally linked to the achievement of a
legitimate
government purpose. The question is not whether the
government could have achieved its purpose in a manner the court
feels is better
or more effective or more closely connected to that
purpose. The question is whether the means the government chose are
rationally
connected to the purpose, as opposed to being arbitrary or
capricious.’
[8]
[33]
In the present case, there is an obvious differentiation between LLB
graduates from univesities and those registered with the
applicant.
In
Weare
the court made no finding on whether juristic
persons, like the applicant, were entitled to rely on the
section
9(1)
right, and assumed, for the purposes of that judgment that they
could indeed bear such right. The issue does not arise in this case

as this has not been disputed by any of the respondents.
[34]      The
applicant argues that there is no rational connection between the
differentiation and a legitimate
government purpose, particularly in
the face of a concession from the Minister of Justice that a
legislative omission resulted
in the present differentiation. The
Minister of Justice has not advanced any government purpose, but the
KZN Law Societyargued
that such purpose is the regulation of the
legal profession, and legal practitioners, and such regulation
includes entry into the
legal profession. The impugned section, so
the respondent argues, sets out the minimum requirements for
admission and enrolment
as a legal practitioner. This signifies the
intention of the legislature and the setting of minimum standards is
in the public
interest, due to the nature of the duties and
responsibilities of legal practitioners.
[35]
The minimum standard that is set as a means of regulation is an LLB
degree
from a university
. There is only one LLB degree that is
accredited by SAQA and it is the same for public universities as that
for the applicant.
While the stated purpose of regulation is
legitimate, I can find no rational basis for differentiating between
persons with the
LLB degree obtained from the applicant following the
due recognition, accreditation and registration with the relevant
education
authorities, including SAQA, and those with an LLB degree
from public universities. This is particularly because of the
confirmation
from the sixth respondent (i.e. the Council on Higher
Education and Training) that the applicant’s four year LLB is
on par
with that from public universities.
[36]
There is no rational link between the impugned provision and the
government purpose it seeks to achieve through the differentiation.
I
accordingly find that the impugned provision limits the provisions of
section 9(1) of the Constitution.
Section 22: the right to choose
and follow a profession, trade or occupation
[37]
Section 22 provides:
‘
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.’
[38]      The
applicant concedes that the right to practice a chosen profession,
trade or occupation may
be regulated by law. In respect of the
applicant, it argues that its trade is that of being a provider of
higher education, as
a private higher education institution. The
applicant argues that it does this in full compliance with the
Higher
Education Act.
[39
]      The
applicant’s LLB students have chosen this degree which has been
registered by SAQA for
entry into the practice of law, and
section 22
guarantees that if they qualify with the LLB degree they are entitled
to enter into the profession of law.
[40]
The ambit of the right in
section 22
was recently interpreted by the
Constitutional Court in
South
African Diamond Producers Organisation v Minister of Minerals and
Energy
,
[9]
as
encompassing two elements: the right to choose, and the right to
practise. The court found that (references omitted)
‘
[though]
both the “choice” of trade and its “practice”
are protected by
s 22
, the level of constitutional scrutiny that
attaches to limitations on each of these aspects differs. If a
legislative provision
would, if analysed objectively, have a
negative impact on choice of trade, occupation or profession, it must
be tested in
terms of the criterion of reasonableness in
s 36(1).
If,
however, the provision only regulates the practice of that trade and
does not affect negatively the choice of trade, occupation
or
profession, the provision will pass constitutional muster so long as
it passes the rationality test and does not violate
any other
rights in the Bill of Rights.’
[41] The Minister of Higher Education
captures the problem correctly when she states in the letter to the
Minister of Justice:
‘
The
problem that
section 26(1)(a)
of the
Legal Practice Act of 2014
creates is that LLB graduates who have obtained their qualification
from registered private higher education institutions may not
be
given an opportunity to practice.’
[42] The KZN Law Society argues that
the regulation of the legal profession facilitates the proper
exercise of the right and is
rational. As already discussed, the
purpose of the Legal Practice ACTi’s to regulate the legal
profession including entry
into the profession through setting of
minimum standards. These minimum standards include the type of
qualification that is required
(the LLB degree) and the type of
institution that should confer the qualification, in this case being
a university.
[43]
The KZN Law Society further argues that those desiring to be admitted
and enrolled in terms of the
Legal Practice Act must
do so subject to
inherent constraints. In support of this submission I was referred to
the case of
S
v Lawrence
[10]
where
the court, dealing with the right as it was contained in the Interim
Constitution, found that:
‘
[32]
… In a modern democratic society a right “freely”
to engage in economic activity and to earn a livelihood
does not
imply a right to do so without any constraints whatsoever.  As
Van Dijkhorst J said in
Directory
Advertising Cost Cutters v Minister for Posts, Telecommunications and
Broadcasting and Others
:
[11]
“
Section
26(1) goes no further than to enshrine the right freely to be active
in the economic sphere wherever one wants – the
economic sphere
with all its inherent constraints.”
[33]
Certain occupations call for particular qualifications prescribed by
law and one of the constraints of the economic sphere
is that persons
who lack such qualifications may not engage in such occupations.
For instance, nobody is entitled to practise
as a doctor or as a
lawyer unless he or she holds the prescribed qualifications, and the
right to engage “freely” in
economic activity should not
be construed as conferring such a right on unqualified persons; nor
should it be construed as entitling
persons to ignore legislation
regulating the manner in which particular activities have to be
conducted, provided always that such
regulations are not arbitrary.
Arbitrariness is inconsistent with “values which underlie an
open and democratic society
based on freedom and equality”, and
arbitrary restrictions would not pass constitutional scrutiny.’
[12]
[44] This submission does not assist
the KZN Law Society in circumstances where the qualification being
offered by the applicant,
i.e. a four year LLB degree approved by
SAQA, is indistinguishable from that offered by universities. The
only difference that
has been presented to me is that the applicant
is a private institution of higher education, whereas the other
institutions that
offer the same qualification are public higher
education institutions that have been established or deemed or
declared as public
universities.
[45] The accreditation body, which is
the sixth respondent, has in a letter of 30 January 2018, stated the
following:
“
The
CHE evaluates the quality of the programmes against a common set of
criteria for all institutions. In addition, the CHE developed

standards for the LLB degree and these standards were used to
evaluate the LLB programs during the National Reviews of the LLB

degrees. The LLB degree of the IIE has met the criteria for
accreditation on 30 March 2017 and the CHE confirmed that the
programme
has been designed according to the standards developed by
the CHE for the LLB degrees.
The
LLB qualification offered by the IIE has been awarded an equivalent
accreditation status to that of the LLB qualification offered
by
universities. It should therefore be regarded on par with the LLB
degrees offered by public providers by the national and provincial

branches of the Law Society of South Africa.”
[46] The nature of the regulation that
is created by section 26(1)(a), of limiting the entry into the
profession to the LLB degree
obtained from a university, when there
is no material distinction between what is offered by a university
and that offered by the
applicant, cannot be said to be anything but
arbitrary.
[47]
I find therefore, that section 26(1)(a) does limit the right of the
applicant and of its LLB students.
Is
the limitation of the rights in section 9, 22 and 29(3) justifiable
in terms of section 36?
[48]
Section 36(1) provides:
‘
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:
(a)
the
nature of the right;
(b)
the
importance of the purpose of the limitation;
(c)
the
nature and extent of the limitation;
(d)
the
relation between the limitation and its purpose; and
(e)
less
restrictive means to achieve the purpose.’
[49]      The
Legal Practice Act is
a law of general application and I have already
made the finding that
section 26(1)(a)
thereof does in fact limit the
rights of the applicant and its LLB students. The Minister of
Justice, who is the custodian of the
impugned legislation, gives no
reason for the limitation of the rights, instead conceding that it
resulted from a legislative omission.
[50]      It
is only the KZN Law Society that seeks to justify the limitation.
Whether it is entitled to
do so, in the present circumstances, is
disputed by the applicant. I can find no bar to the KZN Law Society,
a regulatory body
charged with ensuring compliance with the impugned
legislation, advancing argument in defence of the legislation
especially when
the custodian minister abdicates his duty.
[51]
While defending the impugned legislation is a noble pursuit in
principle, there is no merit to
the defence in the present
circumstances. The distinction created by
section 26(1)(a)
between
LLB degrees from universities and those from the applicant (i.e.
other private higher education institutions who have been
duly
registered and accredited) creates an unnecessary and unjustifiable
limitation to entry into the profession. This is so because
the
applicant is registered in terms of Chapter 7 of the
Higher Education
Act as
a private higher education institution, to provide higher
education at the same standard as public universities. The LLB
offered
by the applicant has been evaluated and accredited by the
same body that accredited the LLB offered by public universities.
[52]      I
accordingly find that
section 26(1)(a)
is unconstitutional and
invalid to the extent that it excludes the applicant by limiting
entry to the profession to LLB degrees
obtained from a university.
What is the appropriate relief?
[53]      In
determining the relief once a declaration of constitutional
invalidity has been made, courts
are empowered to make an order that
is just and equitable. The court must offer relief that is effective
for the breaches of constitutional
rights.
[54]
The Constitutional Court has identified the following options for
consideration in determining
an appropriate remedy, namely whether
the court should simply strike the impugned provisions down and leave
it to the Legislature
to deal with the gap that would result as it
sees fit or whether to suspend the declaration of invalidity of the
impugned provision
for a specified period, or whether the law should
be developed in accordance with the spirit, purport and objects of
the Bill of
Rights or whether to replace the impugned provision.
[13]
[55]
The applicant has urged me to grant effective relief and that such
relief should include an order
that is narrowly tailored to meet the
circumstances of the applicant. In support of this submission I was
referred to the cases
of
Bhulwana
and Gwadiso
[14]
and
Ramuhovhi
v President of the RSA
[15]
both
of which were addressing retrospectivity, which is not an issue in
this case, having regard to the circumstances of the applicant.
[56]      The
circumstances of the applicant that I have taken into account in
formulating effective and
appropriate relief are that it started
offering the LLB degree in 2018, at first year level and this LLB
degree is a four-year
degree. This means that effectively the first
graduates will qualify in 2021, at the earliest.
[57]
This case presents a situation where the application has been brought
after an acknowledgement
by the custodian Minister in relation to the
impugned legislation that there was a legislative omission, and that
he is in the
process of effecting the necessary amendments. The
nature of the amendment is explained in the answering affidavit as
being ‘in
broad terms, to recognise LLB degrees offered by
private higher education institutions in addition to LLB degrees
offered by public
higher education institutions, on condition that
they are registered with the SA Qualifications Authority’.
[58]
This intention, expressed for the first time in a letter written by
the Minister of Justice prior
to this application, was in response to
the letter that was written by the Minister of Higher Education to
the Minister of Justice
highlighting, two problems with the wording
of
section 26(1)(a)
of the
Legal Practice Act. These
were identified
as being firstly, the unnecessary exclusion of the applicant in
circumstances where they have complied with the
education legislation
and been properly registered and accredited, and secondly, the
reference to a university being
registered
in the Republic
when this requirement is inconsistent with the wording of the
Higher
Education Act which
requires the institutions to be ‘established’,
‘converted’, ‘merged’ or ‘declared’

as a public university.
[59]      The
crux of the second problem, according to the Minister of Higher
Education, is that
‘
Since
a private university has not yet been registered in South Africa and
public universities are not “registered”,
both currently
registered private higher education institutions and public
universities do not comply with
section 26(1)(a)
of the
Legal
Practice Act of 2014
’.
[60]      The
amendment that the Minister of Justice is in the process of effecting
is expected to address
both these identified problems. This court
notes that the shortcomings in the present wording of
section
26(1)(a)
are beyond those raised in this application, but I have not
been called upon to decide that aspect.
[61]
Given that the Minister of Justice is already in the process of
amending the legislation, as
is within the purview of the
legislature, I am not convinced that this case calls for a breach of
the separation of powers and
dictating to parliament what the wording
of the amendment should be.
[62]      I
am also satisfied that there will be no gap if the relevant section
is declared constitutionally
invalid, as it has been submitted by the
applicant that it is the only private higher education institution
that is currently authorised
to teach the four-year LLB, and if other
institutions are subsequently granted this authorisation there would
be at least four
years prior to its graduates being affected by
section 26(1)(a).
Furthermore, the declaration of constitutional
invalidity has no force until confirmed by the Constitutional Court.
[63]      The
Minister of Justice has not opposed the relief sought by the
applicant despite the significance
thereof, and has instead insisted
that he will abide by the decision of this court.
Costs
[64]      The
matter came to court on two previous occasions and on both of these
occasions the costs were
reserved for determination at this hearing.
In order to fully address the issue of costs it is necessary to go
through the genesis
of this matter.
[65]      The
application was brought on an urgent basis as a review of the
decision by the first respondent
to refuse to recognise the
applicant’s LLB degree as sufficient for entry into the
attorney’s profession. The applicant
also sought declaratory
relief to the effect that the graduates from its LLB degree are as
qualified to enter the legal profession
as those from accredited
public universities.
[66]      The
entire basis of the application was that section 2(1) of the
Attorneys Act (which was pending
repeal at that stage) and section
26(1) of the Legal Practice Actwas capable of an interpretation that
included the applicant and
that the refusal of the KZN Law Society to
give this interpretation amounts to a reviewable decision.
[67]      The
applicant’s case has undergone a complete transformation,
following the answering affidavit
filed by the KZN Law Society in
response to the original founding affidavit and the judgment of Koen
J. In that judgment the court
expressed its view that the application
raises a constitutional issue, which requires compliance with Rule
16A of the Uniform Rules
of Court, which the applicant had made no
attempt to comply with.
[68]      The
applicant is not the only party to have moved goalposts in this
matter. The first respondent,
in its initial answering affidavit,
criticised the applicant for the manner in which it had formulated
the case, contending that
the KZN Law Society could not be blamed for
applying the law, and that the correct route would be to challenge
the validity of
the legislation being applied.
[69]      The
first respondent initially opposed the application on the basis that
it is merely applying
the legislation, and that the applicant cannot
ask for a reading-in without first seeking an order of constitutional
invalidity
of the impugned legislation. This, it was submitted, was
because the applicant is not a university as contemplated in the
Attorneys
Act, the
Legal Practice Act or
the
Higher Education Act.
[70
]
However, once this had been done the first respondent continued to
oppose the application, the new
basis being that the applicant’s
problems were self-created and lay against the
Higher Education Act
and
not the
Legal Practice Act, which
had by then replaced the
Attorneys Act while retaining similar wording. It argued that the
applicant had failed to comply with
the relevant education
legislation which would have resulted in it being designated as a
university, and had instead started registering
students for the LLB
programme.
[71]      The
Minister of Justice filed an affidavit prior to the judgment of Koen
J, on 18 September 2018,
in which the deponent on behalf of the
Minister admitted that there was a legislative gap, indicated that he
was in the process
of correcting this gap through an amendment
process, and filed a notice to abide the decision of the court.
[72]
At the hearing of the matter the Minister of Justice was represent by
counsel who did not hold
any instructions in relation to the
substantive case and could not assist the court with relevant
information including the reasons
for the impugned provision, the
purpose they were intended to serve and how far the process of
amending the legislation was.
[16]
She could also not indicate what would be a reasonable time to afford
the Minister to effect the amendment, but was happy to join
forces
with and lend support to the argument of the first respondent on the
merits.
[73]      It
was submitted on behalf of the Minister of Justice that the applicant
put the cart before
the horse in offering the LLB degree without
meeting the requirements of the Attorneys Act or even the
Higher
Education Act for
designation as a university. This conduct was
inconsistent with the stance taken by the Minister of Justice until
that point. This
was done without even the filing of heads of
argument.
The
costs reserved on 25 September 2018
[74]      The
application that served before KoenJ on 18 September 2018 was brought
on an urgent basis.
The relief sought was inappropriate, and there
had been no joinder of parties that had an interest in the relief
sought. The urgency,
if any, was not shown to have been caused by any
conduct on the part of the first respondent, against whom the
substantive relief
was sought.
[75]
Counsel for the applicant correctly conceded at the hearing of this
application that the first
respondent was entitled to oppose the
relief initially sought, as the first respondent was giving effect to
the wording of the
statute, and the applicant had not challenged the
constitutionality of the statute.
[76]      The
applicant also conceded in the heads of argument filed for the
hearing on 30 October 2018,
that ‘essentially Koen J upheld
this (first respondent’s) argument’.
[77]      In
light of the fact that the application was brought as private
litigation in the form of a
review, and not a constitutional
challenge, there is no reason why the first respondent should not be
awarded the costs reserved
on 25 September 2018 by Koen J.
Costs reserved on 31 October
2018
[78]
The matter was set down again on 30 October 2018.
[17]
On
that occasion the court granted an order, by consent between the
applicant, first respondent, the Minister of Justice and the
Cape Law
Society, adjourning the matter
sine
die,
with
costs reserved.
[79]      It
was submitted on behalf of the applicantthat the matter was adjourned
on this date to the
present hearing, and this was solely because of
the KZN Law Society’s refusal to withdraw its opposition. No
other submissions
were made in relation to these costs.
[80]
I have had regard to the amended notice of motion,
[18]
and note that it had called upon parties ‘intending to oppose
to indicate this intention by 12 October 2018
failing
which
the application would be set down on an unopposed basis on  30
October 2018’ (my underlining). The notice further called
upon
those opposing, to deliver their answering affidavits within 15 days
of notifying of their intention to oppose.
[81]      The
KZN Law Society duly noted its intention to oppose and served the
notice within the stipulated
period on 09 October 2018. Despite
receiving this notice, and prior to the lapse of the period within
which an opposing party had
to file its answering affidavit, the
applicant proceeded to set the matter down for hearing on 30 October
2018. I point out that
the applicant was seeking substantive relief
against the first respondent, as well as a cost order. It was
entitled to oppose the
application.
[82]
Looking at the documents that had been filed in this application
leading to 30 October 2018 I
am not persuaded that setting the matter
down on the unopposed roll was appropriate, as the first respondent
had not withdrawn
its opposition. In addition, the ninth respondent
had also delivered its intention to oppose, on 26 October 2018, and
was duly
represented in court on 30 October 2018. It only withdrew
its opposition on 5 December 2018.The applicant is not entitled to
the
costs occasioned by the adjournment on 30 October 2018 as it was
the author of its own misfortune.
Costs
of 11 December 2018
[83]
The applicant urged the court to follow the
Biowatch
[19]
principle
to the effect that costs are not awarded against an unsuccessful
litigant in constitutional litigation when litigating
against the
State and the matter is of general import. The reason for this is so
as not to discourage those trying to vindicate
their rights. The
applicant argued that it was entitled to the costs if successful and
indicated that the opposition by the KZN
Law Society was frivolous.
[84]      The
KZN Law Society argued that it was entitled throughout to defend the
matter because the applicant
never withdrew its review and also
persisted in seeking costs against it. It added that its opposition
was necessitated further
by the failure of the Minister of Justice to
defend the impugned legislation or to make the requisite submissions
to the court.
[85]      The
Minister of Justice submitted that he had acted timeously to start
the amendment process
after this issue was brought to his attention,
and he had not delayed. In addition he had always indicated that it
would abide
the decision of the court.
[86]      I
am not persuaded that the KZN Law Society acted frivolously or
vexatiously in opposing the
matter. In addition, the application for
review by the applicant against the KZN Law Society was unsuccessful.
[87]     However, there
is no reason that the applicant should not be awarded its costs. Such
costs must be borne
by the Minister of Justice, given that he is the
custodian of the impugned legislation, and has admitted that
constitutional breach
occurred as a result of a legislative omission.
In addition, his lack of meaningful participation in these
proceedings, despite
being legally represented throughout, calls for
censure through this costs order.
[88]      In
the result, the following order is made:
1.
The
9
th
to 11
th
and 12
th
to 28
th
respondents respectively are joined as additional respondents in this
matter.
2.
Section
26(1)(a)
of the
Legal Practice Act 28 of 2014
is hereby declared
constitutionally invalid insofar as the use of the word “university”
to exclude private Higher Education
Institutions duly accredited and
registered to provide the LLB degree;
3.
The
students that graduate with an LLB degree offered by the applicant
after 1 January 2018,are as qualified to enter the practice
of the
legal profession as the graduates from public universities in South
Africa.
4.
The
applicant is ordered to pay the costs incurred by the first
respondent up to and including the adjournment on 18 September 2018,

such costs to be on the opposed motion scale
5.
There
is no order as to the costs from 26 September 2018 up to 31October
2018
6.
The
third respondent is directed to pay the costs of the applicant from 1
November 2018.
Sibiya  AJ
Appearances
Date
of Hearing

: 11
December 2018
Date
of Judgment

: 22
February 2019
Counsel
for Applicant

: Advocate A Gabriel SC with I Veerasamy
Instructed
by

: Larson Falconer Hassan Inc.
Counsel
for First Respondent        :
Advocate T S I Mthembu
Instructed
by

:  Siva Chetty and Company
Counsel
for Third Respondent      :  Advocate S
Takchund
Instructed
by

:  State Attorney – Durban
[1]
The Attorneys Act has been repealed
in its entirety by the
Legal Practice Act 28 of 2014
, which came
into effect on 1 November 2018.
[2]
The application was initially brought
on an urgent basis as a review of the decision of the KZN Law
Society to refuse to recognize
the IIE’sLLB degree as
sufficient for entry into the attorney’s profession. In
addition the applicant sought a declarator
that its LLB degree is
duly registered and equivalent to the LLB degree offered by
accredited public universities.
[3]
Koen J granted an order adjourning
the application
sine die
,
granting the applicant leave to amend the relief claimed (if so
advised) and supplement its papers as it saw fit, and reserving
the
costs of the application.
[4]
2014 (4) SA 474 (CC).
[5]
Paperback
Oxford English Dictionary
7ed
(2012).
[6]
See
Weare and another v Ndebele
NO and others
[2008] ZACC 20
;
2009 (1) SA
600
(CC) para 46.
[7]
See
Prinsloo v Van der Linde
and another
[1997] ZACC 5
;
1997 (3) SA 1012
(CC);
1997 (6) BCLR 759
(CC) paras24 – 26,
interpreting section 8(1) of the Interim Constitution.  This
interpretation was adopted and applied
to section 9(1) in
Harksen
v Lane NO and others
[1997]
ZACC 12
;
1998 (1) SA 300
(CC) para 43;
1997 (11) BCLR 1489
(CC) para
42.
[8]
See
Jooste v Score Supermarkets
Trading (Pty) Ltd (Minister of Labour Intervening)
[1998]
ZACC 18
;
1999 (2) SA 1
(CC) para 17
[1998] ZACC 18
; ;
1999 (2) BCLR 139
(CC) para 16;
East Zulu Motors (Pty) Ltd
v Empangeni/Ngwelezane Transitional Local Council and others
[1997]
ZACC 19
;
1998 (2) SA 61
(CC);
1998 (1) BCLR 1
(CC) para 24;
Prinsloo
n7
para 25.
[9]
South
African Diamond Producers Organisation v Minister of Minerals and
Energy and others
[2017]
ZACC 26
;
2017 (6) SA 331
(CC) para 65.
[10]
See
S
v Lawrence; S v Negal; S v Solberg
[1997]
ZACC 11
;
1997 (10) BCLR 1348
;
1997 (4) SA 1176
para
32 – 33.
[11]
1996
(3) SA 800
(T) at 813G.
[12]
Section
35(1) requires the provisions of the bill of rights to be
interpreted so as to promote such values.
[13]
See
BheandothersvMagistrate,Khayelitshaandothers;ShibivSitholeandothers;SAHumanRightsCommissionandanothervPresidentoftheRSAandanother
2005(1)BCLR1(CC),2005
(1) SA 580 (CC).
[14]
See
S
v Bhulwana; S v Gwadiso
[1995] ZACC 11
;
1996 (1) SA 388
(CC) para 32.
[15]
See
Ramuhovhi
and others v President of the Republic of South Africa and others
[2017] ZACC 41
,
2018 (2)
BCLR 217
(CC);
2018 (2) SA 1
(CC) para 57.
[16]
Khosa
and others v Minister of Social Development and others
[2004] ZACC 11
;
2004 (6) SA 505
(CC)paras 18 to 19.
[17]
The
Notice of Set Down on page 30 of the Indexed Notices bundle is court
stamped 26 October 2018, and does not indicate whether
this was on
the opposed or unopposed roll.
[18]
Amended
Notice of Motion is in Volume 5, relevant parts being on pages 354
to 355.
[19]
Biowatch
Trust v Registrar, Genetic Resources
2009
(6) SA 232
(CC).