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[2019] ZAWCHC 96
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Alves and Others v Legal Practice Council (7528/19; 6990/19; 6541/19; 6661/19; 6900/19; 3043/19; 6155/19;6156/19; 6845/19) [2019] ZAWCHC 96; 2019 (6) SA 18 (WCC) (31 July 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No.: 7528/19; 6990/19; 6541/19; 6661/19; 6900/19; 3043/19; 6155/19
6156/19;
6845/19
In
the matter between:
Reeva
Joy Alves and Eight Similar Cases v Legal Practice Council
Date:
31 July 2019
REASONS
FOR THE ORDER MADE ON 21 JUNE 2019
HLOPHE,
JP
[1]
On
the 7 June 2019 Madam Justice Baartman and I heard unopposed
admission applications in open court. Matters number 1 to number
9 on
the roll were all opposed. Accordingly we directed that the
applicants in those matters would not be admitted. Counsel in
those
matters were asked to prepare and file two sets of papers and heads
of argument for the court. The applicants were furthermore
advised by
the registrar that they would not be admitted on the 7 June 2019
because their applications were opposed by the Legal
Practice
Council. In all the other matters before us on 7 June 2019 applicants
were admitted as legal practitioners and immediately
enrolled as
either advocates or attorneys. In view of the urgency of the matter,
we decided that the matter should be fully argued
and decided as
quickly as possible before the next round of admissions on 02 August
2019. All the 9 matters were heard together
on 21 June 2019.
Thereafter an order was made directing the South African Legal
Practice Council to remove each of the Applicants
from the roll of
attorneys and enrol each of the Applicants to the roll of advocates.
We indicated that the reasons for granting
that order would follow.
[2]
Briefly
stated, the facts giving rise to these applications were that in all
the matters before us, the applicants wanted to have
their names
removed from the roll of attorneys and be enrolled as advocates.
The central issue for determination by this
court is whether the
applicants, all being admitted legal practitioners and enrolled as
attorneys, are entitled to rely on section
115 of the Legal Practice
Act 28 of 2014 (LPA) to be enrolled by the Legal Practice Council as
Advocates of the High Court. All
of them have successfully undertaken
practical training as candidate attorneys, passed board examinations,
and found to be fit
and proper by the High Court. The applicants
submit that they are entitled to rely on section 115 of the LPA read
with the recent
decisions of
Ex
parte Goosen
2019 (3) SA 489
(GJ) (a full bench decision) and
Ex
parte Bakkes
2019 (2) SA 486
(ECG). The respondent on the other hand submits that
the conversion mechanism in section 32 of the LPA should be utilised
by the
applicants and not section 115 of the LPA, because section 115
only applies to people or applicants who have never been admitted
as
legal practitioners before.
[3]
Section
32 of the LPA is the new mechanism with which Legal Practitioners
could convert from being enrolled as attorneys to advocates
or vice
versa and it states;
“
32 Conversion
of enrolment
(1)
(a)
A
legal practitioner may, at any time, as determined in the rules and
upon payment of the fee determined by the Council in
the rules, apply
to the Council to convert his or her enrolment as an attorney to that
of an advocate and
vice versa
.
(b)
An
advocate practising as such referred to in section 34 (2)
(a)
(i)
may, at any time, as determined in the rules and upon payment of the
fee determined by the Council in the rules, apply
to the Council for
the conversion of his or her enrolment to that of an advocate
practising as such referred to in section 34 (2)
(a)
(ii)
and
vice
versa
.
(2)
The Council may impose any conditions as it considers appropriate to
give effect to the conversion and the provisions of this
Act relating
to enrolment.
(3)
The Council may make rules setting out the circumstances under which
a legal practitioner can apply for the conversion of his
or her
enrolment and any requirements such legal practitioner must comply
with.”
However
at this moment the applicants cannot apply for conversion under
section 32 because firstly they are required to undergo
a specialized
training course in advocacy and there is no course available in Cape
Town. Secondly, and in any event not all of
the applicants have
rights of appearance in the High Court as required by section 25(3)
of the LPA.
[4]
Section
24(1) of the LPA provides that:
“
24. 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.
(2) The High
Court must admit to practise and authorise to be enrolled as a legal
practitioner, conveyancer or notary
or any person who, upon
application, satisfies the court that he or she—
(
a
)
is duly qualified as set out in section 26;
(
b
)
is a—
(i)
South African citizen; or
(ii)
permanent resident in the Republic;
(
c
)
is a fit and proper person to be so admitted; and
(
d
)
has served a copy of the application on the Council, containing the
information
as determined in the rules within the time period
determined in the rules.”
[5]
Section
26(1) of the LPA provides:
“
26. 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.”
[6]
Section
3(1) of the Admission of Advocates Act 74 of 1964 (the AAA), which
has
been wholly repealed by the LPA,
provides:
“
3. Admission
of persons to practise as advocates.
—
(1) Subject
to the provisions of any other law, any division shall admit to
practise and authorize to be enrolled as
an advocate any person who
upon application made by him satisfies the court—
(
a
)
that he is over the age of twenty-one years and is a fit and proper
person to be so
admitted and authorized;
(
b
)
that he is duly qualified;
(
c
)
that he is a South African citizen or that he has been lawfully
admitted to the Republic
for permanent residence therein and is
ordinarily resident in the Republic;
(
d
)
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
)
. . . . . .”
[7]
Section 115 LPA provides:
“
115. Persons
entitled to be admitted and enrolled as advocates, attorneys,
conveyancers or notaries.
—
Any
person who, immediately before the date referred to in section
120 (4), was entitled to be admitted and enrolled as an
advocate, attorney, conveyancer or notary is, after that date,
entitled to be admitted and enrolled as such in terms of this Act.”
[8]
What is envisioned by the LPA was well put in
Goosen
at para 9
where the court stated that:
“
The
objective and the effect of the LPA is deliberately to revolutionise
the regulation of the South African Legal Profession. The
LPA regime
is a stark contrast from the two former regimes which were distinctly
asymmetrical. The gateway to admission as an advocate
was section 3
of the AAA. The gateway to admission as an attorney was section 15 of
ATT. Each section provided for admission to
practice "on
application", but the criteria were different. The material
attributes alone are addressed in this judgment.
To satisfy the
requirements of section 3 of AAA a person had to be 21 years of age,
possess an LLB degree and be of good character
(ie, to be fit and
proper). Significantly, no vocational training or in - service
training was required. By contrast, to satisfy
the requirements of
section 15 of the ATT a person had to be 21 years of age, possess an
LLB degree, be of good character and furthermore,
serve a prescribed
period of articles and pass an examination in prescribed subjects.
The LPA unambiguously prescribes vocational
training as a
sine
qua non
for
admission to practice and unequivocally repudiates the anomaly that
has existed in respect of advocates under the repealed AAA
regime, in
terms of which advocates, unlike attorneys, could be unleashed on the
litigating public, bereft of any vocational training
whatsoever.
Thus, an unpalatable anachronism has been extinguished.”
[9]
Roberson J in the
Bakkes
matter held that section 115 should
be interpreted to mean what it says, namely persons who qualified for
admission and enrolment
under the old Act prior to 1 November 2018
are entitled to be admitted and enrolled as advocates. Furthermore
her ladyship stated
at para 12 that:
“
To
require such a person to satisfy the requirements of the old Act and
the LPA in order to be admitted, would unfairly require
such persons
to be dually qualified, and would negate the provision in the section
that they are entitled to be admitted if they
were so entitled prior
to November 2018”
[10]
At
all times it is imperative to interpret legislation in a sensible,
business-like manner and take into account both the text and
the
context. One must look to promote the spirit, purport and objects of
the Bill of Rights as enshrined in the Constitution. It
is also trite
that there is a presumption in our law that legislation should not be
interpreted as having a retrospective effect,
unless the contrary
intention is clear. In the absence of such a clear intention, an
individual’s rights must be preserved
by new legislation. See
S
v Mhlungu And Others
[1995] ZACC 4
;
1995 (3) SA 867
(CC) para 65,
Cape
Town Municipality v F Robb & Co Ltd
1966
(4) SA 345
(C)
at
351,
per
Corbett
J and also see
Shewan
Tomes & Co Ltd v Commissioner of Customs and Excise
1955
(4) SA 305
(A)
at
311H,
per
Schreiner
ACJ. Surely in my view this is precisely what section 115 of the LPA
seeks to achieve. There is in my judgment no
ambiguity in section 115
of the LPA. Mr. Koen for the respondent, argued that the facts in the
Goosen
and the
Bakkes
cases should be distinguished from the current matter, because in
those two matters the applicants were not yet admitted in the
profession. In the current case he argued, the applicants had already
been admitted as attorneys and now seek to convert from being
enrolled as attorneys and to be admitted and enrolled as Advocates.
Therefore, according to him, section 115 only applies to applicants
that are new in the profession and have never been admitted as legal
practitioners. In this matter the applicants have already
been
admitted as attorneys and now want to convert and be admitted as
advocates.
[11] If
one takes this argument to its logical conclusion it leaves those
that have been in the profession
as attorneys in a worse off position
compared to new applicants who are fresh from University and can
simply be admitted as legal
practitioners and enrolled as advocates.
It must be noted that the LPC has not opposed the applications of
other pupil members
of the Cape Bar to be admitted as advocates who
have not previously been admitted as legal practitioners, regardless
of the fact
that some of them have never completed any formal
training to become advocates, nor have they written bar exams. Surely
a situation
of that nature is untenable and it could not have been
the intention of the legislature to hinder or prevent the admission
of trained
and experienced legal practitioners in the profession. As
we have said earlier, legislation cannot be interpreted to thwart
people’s
rights. In actual fact its objective is to ensure that
such experienced legal practitioners are retained in the profession.
Which
therefore means that section 115 of the LPA as a transitional
provision could be used to good effect to ensure that those
individuals
are not lost in the profession.
[12] Having
read the documents filed of record and having heard counsel in the
matter, we had no hesitation
in granting the order referred to above,
namely admitting the applicants as legal practitioners and ordering
the LPC to enroll
them as advocates.
HLOPHE JP
I AGREE
BAARTMAN J