Webbstock v Law society of the Northern Provinces (78556/2015) [2016] ZAGPPHC 545 (20 June 2016)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 545
|

|

Webbstock v Law society of the Northern Provinces (78556/2015) [2016] ZAGPPHC 545 (20 June 2016)

REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 78556/2015
DATE:
20 JUNE 2016
In
the matter between
WEBBSTOCK,
MATHEY
RALPH
........................................................................................
Applicant
And
THE
LAW SOCIETY OF THE NORTHERN
PROVINCES
............................................
Respondent
JUDGMENT
MAD
IMA. AJ
[1]
The applicant seeks admission as an
attorney of the High Court of South Africa. He is some two years
late. But for an ill-advised
let us kill two birds with one stone
arrangement with his father, the applicant would have been admitted
in 2014. The respondent
opposes the application.
[2]
Mr Mathey Ralph Webbstock matriculated
at the end 2008. He secured for himself a place and bursary to read
for the Baccalaureus
Legum (“LLB”) degree at the
University of the Witwatersrand (WITS). Parallel with his studies, he
entered into a five
(5) years contract of articles of clerkship (“the
contract”) with Anthony John Webbstock (“the principal”)

of Tony Webbstock Attorneys of Alberton North. The principal is also
the applicant’s father. The applicant commenced his
employ with
attorney Webbstock on 23 February 2009, and his first year of law at
WITS as a full­time student at about the same
time.
[3]
The contract was duly lodged by the
principal with the Secretary of the Law Society of the Northern
Provinces (“the respondent”)
for registration in terms of
the Attorneys Act 53 of 1979 (“the Act”) on 24 March
2009. The respondent confirmed the
registration of the contract in a
letter dated 26 March 2009. Importantly the letter inter alia stated
that
"The fact that your contract has been registered
does not mean that you will be entitled to admission and you should
acquaint
yourself with the requirements of the Attorneys Act in this
regard".
[4]
In his application for the registration
of the contract with the respondent, the applicant, inter alia
attached proof of his registration
at WITS for the LLB degree as well
as proof that he had obtained the university scholarship award. In
his response to WITS in a
letter dated 16 January 2009 the applicant
stated inter alia that
“
Thank you
for your letter of 01 January 2009 from which I note that I have been
offered a place in Bachelor of Laws, Full Time,
First Year, in 2009.
I have pleasure in accepting this offer subject to the conditions set
out in your letter.”
(applicant’s
emphasis)
[5]
The applicant completed his law degree
at the end of 2012 and was capped on 26 March 2013. He continued in
his employment with attorney
Webbstock until 23 February 2014, his
last of the five years of the contract. The applicant remained in the
employ of attorney
Webbstock post the expiry of the contract.
[6]
On 18 July 2014 he launched an
application for his admission as an attorney in the High Court. The
respondent, upon learning that
the applicant had studied full-time
for the LLB degree, reminded the applicant of the provisions of
sections 6 and 7 of the Act.
The sections provide that a candidate
attorney was required to perform his duties without interruption
during normal working hours
during the whole period of the contract
of articles of clerkship. Failure to do so may result in irregular
service under articles.
[7]
The respondent advised the applicant
thus
",Since it appears that your articles may not have
been regular in accordance with the ordinary interpretation and
application
of the Act, you must consider applying for condonation in
terms of section 13(2) of the Act and/or section 13(3) insofar as it
may be necessary.
The respondent
further requested the applicant to depose to a
supplementary
affidavit wherein he must
(a) clearly and in detail set out
how many hours of each normal working day during the normal/standard
week consisting of five days
(5) working days from Monday-Friday
since commencement of your articles of clerkship you were not
performing articles due to your
attendance at the University for the
purpose of obtaining your LLB degree during normal working hours, (b)
clearly and in detail
set out how many hours of each normal working
day during the normal/standard week consisting of five days (5)
working days from
Monday-Friday since commencement of your articles
of clerkship you were performing service as a candidate attorney
during normal
working hours, (c) attach any relevant documentation as
proof of the above, (d) how many normal/standard working days from
Monday-Friday
during each year of the five years of your articles you
were absent from articles for the whole day for the purposes of any
kind
of leave (annual, sick, study etc) (e) explain on what basis the
Law Society and the Court must accept that you complied with the

requirements of section 6 and 7 of the Act during your period of
articles of clerkship as is recorded in paragraphs 9.4.1 and 9.4.3
of
your founding affidavit - if you for at least a period of four years
thereof attended classes for the full-time study of your
LLB degree
at the University during the normal working hours of a normal working
day, studied for and written examinations, (f)
address any other
relevant matters that arises as a result of having disclosed the
above details and (g) confirm that there are
no criminal proceedings
pending against you”.
[8]
The applicant withdrew his application
for admission as an attorney on the belief that the respondent’s
interpretation of
sections 6 and 7 of the Act was the correct
interpretation. He continued working at the law firm.
[9]
The applicant comes before us seeking
three alternative prayers for condonation. First, that his irregular
service under articles
of clerkship entered into with his principal
on 23 February 2009 be condoned in terms of section 13(2) of the
Attorneys Act 53
of 1979 (the Act) on the ground that such service
was occasioned by sufficient cause and is substantially equivalent to
regular
service. Second, and in the alternative, that the whole or
part of the period of articles of clerkship already served prior to
obtaining the degree of Baccalaureus Legum (“LLB”) be
regarded as having been served under articles of clerkship entered

into after he had satisfied such requirements. Finally that any
period of absence from the office during the period of his service

under articles of clerkship exceeding in aggregate thirty (30)
working days in any one year of articles, be added to the period
of
service under the articles of clerkship.
[10]
The applicant submitted that he has
complied with the provisions of section 6(1 )(a) of the Act, namely
that he was in the service
of the principal as a candidate attorney
in the principal’s office and under his direct and personal
supervision and control.
He further argued that he also has complied
with section 7(1) of the Act which requires continuous and
uninterrupted service under
articles of clerkship save for leave
which in the aggregate did not exceed 30 working days per year.
[11]
The applicant explains rather
confusingly that studying “full-time” does not mean
full-time or all the time. When he
was not attending lectures he was
attending to his duties as an articled clerk either at the
principal’s Alberton office
or at their home where he shared
offices with the principal. WITS, he claims, is equidistant from the
Alberton office and his home.
The applicant attached the lectures
time table that indicates that his lectures required less than 50% of
a normal working week
from Monday to Friday.
[12]
In addition to the above the applicant
submitted that he had a month’s academic break in July of every
of the four years he
spent at WITS as a student. The December -
February academic recess afforded the applicant an additional 3.5
months per annum.
Accordingly the applicant did not need to attend
lectures for four and a half months per year for four years. This
meant that he
spent the balance of the time amounting to 18 months in
the four years he was a student at WITS at the workplace under
articles
of clerkship.
[13]
In summary the applicant seeks
condonation on the following grounds:
13.1
during the four years of study he spent 2.7 years under articles of
clerkship.
13.2.
the total time spent in the workplace after expiry of articles on 23
February 2014 equals 1.5 years
13.4
he would have needed only to spend 2 years or articles after the LLB
degree.
114]
The applicant requests the Court also to consider the 1.5 years that
he spent while on university breaks to be equivalent to
regular
service.
[15]
The respondent’s submission in
this regard is that as a result of the applicant’s full-time
studies, he did not serve
attorney Webbstock under contract of
articles of clerkship on a full-time basis. Although the Act does not
refer to service on
a full time basis, this can safely be inferred
with reference to the wording of section 6. This fact, so argued the
respondent,
therefore rendered the contract between the applicant and
the principal invalid. This is so because at the conclusion of the
contract
it was contemplated and understood by the applicant and the
principal that the applicant would be attending to his studies on a

full time basis during the first four of the five years contract
period. By so doing, the applicant has not complied with the
provisions of the Act relating to service under articles of
clerkshipA
[16]
Citing Law Society of the Northern
Provinces v Mahon
2011 (2) SA 441
(SCA) the respondent submitted that
service rendered pursuant to an invalid agreement cannot be condoned.
The invalidity of the
contract is based on the fact that the
applicant and the principal concluded the contract on the basis that
the applicant will
not be serving under articles of clerkship on a
full time basis for the full period stipulated by the Act. The breaks
in service
during the period of articles of clerkship envisaged in
the Act are
“breaks in service either through accident,
as in the case of illness of the clerk, or through a bona fide
mistake, or through
sufficient cause."
[17]
The Court held further that
“...Plainly, it is only the irregular service of a
candidate attorney (as defined) that may be normalized - not
irregular
service generally.” [at paragraph 7] And further that
“...What emerges from this analysis is that the legislature
intended
the terms of the clerkship agreement to be the bedrock of
the regulatory regime governing candidate attorneys. But it is
recognized
that the strict application of this regime may sometimes
cause hardship. It thus gave the High Court the authority to condone,
on sufficient grounds, the irregular service of a candidate
attorney.
... But, it is plain that the High Court’s authority to excuse
irregular service is conditional
upon
the candidate attorney having concluded a clerkship agreement in
accordance with the Act, in
other
words, a valid contract of articles.[alt paragraph 12] “ In
addition....service of articles can only
be
service of articles under a valid contract, and that a court may only
consider condoning any irregular service once the validity
of the
contract has been established."
[at
paragraph 13].
[18]
In support of the above contention
the respondent submitted that the Act described
'articles’
as
°....any contract in
writing under which any person is bound to serve an attorney for a
specified period in accordance with
this Act....’'.
A
candidate attorney is described as
*.. any person bound to
serve under articles of clerkship or to perform community service
under a contract of service...”,
[19]
The respondent contended further that
the requisites of section 6(1) of the Act entreats any candidate
attorney to serve the whole
term of service specified in the articles
of clerkship in the office of his principal under his direct personal
supervision.
‘Whole term'
specified
in the Act, so argued the respondent, meant that a candidate attorney
must serve under articles of clerkship on a full
time basis.
Referring to section 13(2) of the Act, the respondent submitted that
condonation for irregular service can only be
granted if the
agreement of articles was validly entered into.
The
relevant provisions of the Act
[20]
As already stated above the Act
defines Articles of clerkship as
Any contract in writing under
which any person is bound to serve an attorney for a specified period
in accordance with this Act.
A
Candidate attorney is
Any person bound to serve under articles
of clerkship or to perform community service under a contract of
service.
[21]
Section 2 of the Act provides for the
duration of service under articles and states that
(i)
.
Any person to be admitted as an attorney, shall serve under articles
of clerkship for a period of
(a)
(b)
(o)
...................................................
(d)
.......................................................
(e).
5 years after he has passed an examination referred to paragraph (d).
[22]
The examination referred to in section
2(1 )(d) is the National Matriculation Examination. This is the
section in terms of which
the applicant purported to enter into the
contract with the principal.
[23]
Section 6 of the Act provides for the
supervision over candidate attorneys. Section 6(1) states that
(1)
. without derogating from the provisions of section 10, any
candidate attorney shall
during the whole
term of service specified in the articles of clerkship, serve
(a) in the office
of his principal under his direct personal supervision or under that
of an attorney who is a partner or manager
of his principal.
(2)
.
For the purposes of sub-section (1) “office" shall not
include a branch office which is under the control of an attorney
who
is not entitled to have a candidate attorney under articles.
[24]
Section 7 of the Act makes provision for
the absence of a candidate attorney.
(1)
Subject to the provisions of sub-section (2), a candidate
attorney may with the consent of his principal, absent himself from
office
for a period which does not, or for periods which in the
aggregate do not, exceed thirty working days in any one year of the
articles
of clerkship or contract of service.
(2)
..............................................................................
(3)
If
any period of absence from office exceeds, or the period of absence
from office in the aggregate exceed thirty working days in
any one
year of articles of clerkship or contract of service, the period in
excess of thirty working days shall be added to the
period for which
the candidate attorney is bound to serve under articles or contract
of service.
[25]
Section 13 of the Act provides that
(2)
if any person has not served regularly as a candidate attorney,
the court, if satisfied that such irregular service was occasioned
by
sufficient cause, that such service is substantially equivalent to
regular service, and that the society concerned has had due
notice of
the application, may permit such person, on such conditions as may
deem fit, to apply for admission as an attorney as
if he had served
regularly under articles or a contract of service.
(3)
the court may, on the application of a candidate attorney who has
satisfied all the requirements for a degree referred to in paragraph

(a) or (c) of section 2(1) or for the degrees referred to in
paragraph (aA) of that section, or for a degree or degrees referred

to in paragraph (aB) or (cA) of that section in respect of which a
certification in accordance with those respective paragraphs
have
been done, and subject to such conditions as the court may impose,
order that the whole or any part of the period served by
that
candidate attorney under articles before he or she satisfied such
requirements, shall, for the purpose for his or her admission
and
enrolment as an attorney, be regarded as having been served after and
under articles entered into after he or she satisfied
such
requirements.
[26]
Section 15 of the Act provides that
unless cause to the contrary to its satisfaction is shown, the court
shall on application in
accordance with the Act, admit and enroll 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;
(b)
The court is satisfied that such person has satisfied the
following requirements
(0
.................................................................
.
(Hi)
.............................................................
(vi)
completed his 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 application to the court or within the further
period
allowed by the court in terms of sub-section (2).
Validity
of the contract of articles of clerkship between applicant and
principal
.
[27]
Given the provisions of the Act referred
to above, the question is whether a valid contract of articles of
clerkship in fact existed
between the applicant and the principal.
[28]
The validity of the contract of articles
of clerkship is determined at the conclusion of the contract. The
normal requirements for
validity therefore apply. The fact that there
was breach, does not affect the validity.
[29]
What was contemplated by the applicant
and principal at the time of the conclusion of the contract of
articles of clerkship is of
great importance. It is clear from the
facts that despite the commitment to a 5 year contract, both the
principal and the applicant
understood the terms of the contract to
be that the applicant would be studying at WITS on a full-time basis
in the first four
years of the five year period of the contract.
[30]
In his replying affidavit the applicant
states that in his application for the registration of the contract
of articles of clerkship
he attached proof of his registration at
Wits. This therefore should mean that the respondent was aware of his
situation. The respondent
upon receiving the application for
registration of the contract informed the applicant in a letter dated
26 March 2009 that
“The fact that your contract has been
registered does not mean that you will be entitled to admission and
you should acquaint
yourself with the requirements of the Attorneys
Act in this regard’.
It was therefore
incumbent upon the
applicant
and the principal to ensure that his application complied with the
requisites of the Act. The principal has been in practice
as an
attorney of this court since 1983. He should therefore be au fait
with the provisions of the Act in this regard.
[31]
Where a candidate attorney or his
principal did not have the intention that the candidate attorney will
be duty bound to serve his
principal for the period prescribed by the
Act, such contract is not a contract of articles of clerkship in
terms of section 1
of the Act. Condonation can, in these
circumstances, not be granted in terms of section 13(2) of the Act.
[32]
Section 6 of the Act contemplates that a
candidate attorney shall throughout the term of his service under
articles of clerkship
serve in the office of his principal. The
service must be done under the principal’s direct supervision.
Section 7 of the
Attorneys Act allows a candidate attorney to be
absent from the workplace with leave of the principal for no longer
than 30 days
in aggregate in any one year of the articles of
clerkship or contract of service.
[33]
Whether service can be described as
regular or irregular depends largely on whether the candidate
attorney was in service under
a valid contract of articles of
clerkship.
[34]
Irregular service that may be condoned
would constitute breaks in service through accidents such as illness,
through a bona fide
mistake or other sufficient causes as was held in
Ex Parte Couzin
1929 TPD 238
at 240 and Ex Parte Pieterse
2001 (1) SA
1247
(C). It does not seem that the grounds proffered by the
applicant would constitute sufficient cause in order to satisfy the
requirements
of the Act. Those requirements include the existence of
a valid contract of articles of clerkship. It is not within the
powers
of the court to render an otherwise invalid contract, valid.
[35]
Of concern to the court are the
submissions made on behalf of the applicant more specifically that
(a) he was a full time student
at WITS between 2009 and 2012,
(b)
he served his articles of clerkship
during the same period of his full time studies at
WITS,
(c) he spent time studying during working hours whilst in the office
of the principal.
[36]
There is little doubt that the above
arrangements were made possible because of the special relationship
between the applicant and
the principal. No principal should allow
his articled clerk to study full time for his law qualification and
serve his articles
of clerkship at the same time. Their agreement
would best be described as a sham and intended to deceive the Law
Society, and make
possible the applicant’s premature admission
to the attorneys’ profession.
[37]
Amazingly the applicant equates
attending lectures, studying, reading, completing assignments and
attending examinations during
office hours as substantially similar
to serving under a contract of articles of clerkship. He states that
all candidate attorneys
study, read and complete assignments during
office hours. The applicant submits that studying law and service
under a contract
of articles cannot be separated. This cannot be what
is contemplated by the Act in the training and regulation of the
business
of attorneys.
[38]
The fact that the applicant also was
absent for a period in excess of 30 days per year from the workplace
whilst pursuing his law
studies compounds his challenges. Being
absent from the workplace for full time studies does not in my view
constitute sufficient
cause of such absence meriting condonation. The
applicant conceded, however, that attending lectures during the day
falls foul
of section 6 of the Act.
[39]
The principal is largely to blame for
the applicant’s dilemma. He was admitted as an attorney of this
Court in 1983. It does
not seem that he has learned much during all
of that period as an attorney. I find particularly sad the
principal’s submission
that the applicant had complied with the
provisions of section 15(1)(b)(vi) of the Act by serving 5 years of
his articles of clerkship.
The principal knows full well that his
statement made under oath is not correct. Stating that the applicant
served continuously
without interruption or break save for period
leave which in the aggregate did not exceed 30 working days per year,
is also false.
[40]
Sections 15 and 11 of the Act allow, the
Court, under certain circumstances to condone and modify the periods
of clerkship. Barnard
and Another v Law Society, South West Africa
1989 (1) SA 739
(SWA). The above two sections would not be applicable
to the applicant because his contract of articles of clerkship is not
one
contemplated by the Act.
[41]
Only irregular service under a valid
contract of articles of clerkship can be condoned by the court.
Bosman v Prokureursorde van
Transvaal
1984 (2) SA 633
(T). The courts
are very strict when dealing with irregular service. In Bosman supra,
a principal already had the maximum permissible
number of articled
clerks articled to him. He caused the registration of a contract of
his articled clerk with another attorney
but retained the articled
clerk in his employ. The court held that the arrangement never gave
rise to a valid contract of articles
of clerkship contemplated by
section 6 of the Act. See also Ex Parte Singer: Law Society of the
Transvaal Intervening
1984 (2) SA 757
(A).
[42]
The invidious position that applicant
finds himself in, is due to his and his principal’s doing. Had
both elected to do the
right thing, applicant would by now be an
admitted attorney of this court. It is my view that the reason the
applicant was in a
position to attend full-time at WITS and allegedly
full time in articles with the principal was because the principal is
his father.
Both should have recognized this apparent conflict of
interest. Both were blinded by familial ties. Applicant would not
have been
allowed to conduct his affairs accordingly with a third
party attorneys firm with no ties to his father.
[43]
The applicant’s situation is
novel. I have searched for authority that would justify the court to
grant him the relief he
seeks. The closest authority appears to be Ex
Parte Edwards and Another
1995 (1) SA 451
(C) where relief was
granted to the applicant where the articled clerk and principal had
not entered into articles of clerkship
because the principal had been
incorrectly advised by the law society that he did not by reason of
section 3(1)(i)(i) qualify to
enter into a contract of articles of
clerkship. The Court granted the order declaring that the whole
period of two years’
employment by the applicant with the
attorney to be regarded as equivalent to regular service as if served
under a registered contract
of articles.
[44]
I accept that the facts in Edwards supra
are distinguishable from the instant case. Of importance is that
Edward was criticized
in Tshabalala v Natal Law Society
1996 (4) SA
150
(N) where the court held that only irregular service as a
candidate attorney may be made regular, and not irregular service
generally.
The court has the power in terms of section 13(2) of the
Act to condone irregular service provided there was sufficient cause
and
service substantially equivalent to regular service Ex Parte
[45]
Service of articles can only be service
of articles under a valid contract. The court may only consider
condoning any irregular
service once the validity of the contract has
been established. Ex Parte Traverso
1977 (1) SA 791
(C) at 793A-D.
Bosman v Prokureursorde Van Transvaal
1984 (2) SA 633
(T) at 636 F-G.
Tshabalala v Natal Law Society
1996 (4) SA 150
(N) at 152C-G. The
arrangement between the applicant and the principal which purported
to be a contract of articles of clerkship
does not pass muster.
[46]
There is little doubt that the applicant
has suffered great inconvenience, and will continue to do so by
remaining outside of the
attorneys’ profession. I am also alive
to the fact that courts must be compassionate. Legal questions
however must be resolved
without regard to sentiment or sympathy as
was held in Ex Parte Venter
1954 (3) SA 567
(O) at 569D-E in Mahon
supra, paragraph 33A-B.
[47]
There is no provision in the Act to
register a second contract of articles of clerkship after the event.
This option is therefore
not available to the applicant. Similarly,
the applicant cannot benefit from the extension of his contract
because there never
was a valid contract in the first place. Only
valid contracts of articles of clerkship can be extended. Ex Parte du
Plessis (Prokureursorde,
Transvaal Toetredend)
1989 (2) SA 602
(T).
[48]
Apart from the ad hoc employment of the
applicant between 2009 and 2012, he has spent the years 2013, 2014
and 2015 as well as part
of 2016 in the employ of the principal or at
least at Webbstock Attorneys INC. His functions were similar to those
performed by
a candidate attorney. This employment was served outside
of any contract of articles. This period can also not be considered
irregular
service because irregular service can only be condoned
where a valid contract of articles existed. The applicant finds
himself
in a bind.
[49]
Because the applicant was never a
candidate attorney as defined in the Act, it would seem that the only
option available to the
applicant would be to enter into a valid
contract in terms of the Act if he wishes to be admitted and enrolled
as an attorney.
There is no any other way.
[50]
The short cut approach to the killing of
two birds with one stone has backfired badly and delayed the
applicant’s entry into
the attorneys’ profession by more
than two years. Hopefully, the applicant has learnt his lesson.
Hopefully the applicant
shall in the future shy away from attempting
to beat the system by opting for quick fixes.
[51]
I am bound to consider the adequacy of
the applicant’s grounds for condonation. I have. They limp.
They hobble badly. The
explanation offered by the applicant and
principal does not present reasonable sufficient cause as described
in Ex Parte Pieterse
supra. I am therefore unable to come to
applicant's assistance.
[52]
The only way out of this bind is for the
applicant to enter into a valid 2 year contract of articles with the
principal or any other
attorney that qualifies to take on an articled
clerk.
[53]
It is common cause that the applicant
has satisfied all of the other requisites for admission save for
service under articles of
clerkship. This he must still do if he
wishes to be admitted as an attorney of this Court.
[54]
I find that the applicant has not made
out a case for condonation and for his admission and enrolment as an
attorney of this Court.
[55]
Consequently I make the following Order:
1.
The applicant’s application for
condonation is dismissed.
2.
The applicant's application for
admission and enrolment as an Attorney of the High Court of South
Africa, Gauteng Division is dismissed.
3.
The applicant to pay the costs of the
respondent on the scale as between attorney and client.
TS
MADIMA: AJ
ACTING
JUDGE OF THE HIGH COURT
CONCUR
M JANSEN: J
JUDGE
OF THE HIGH COURT
On
behalf of the Applicant: Mr R.J.A Joubert
Attorneys
for Applicants: Tony Webbstock Attorneys do Rontgen & Rontgen
012
481-3555 / 011 640 3534 E-Mail:
twebbstock@debtadmin.co.za
On
behalf of the First Respondent:
Instructed
by: Mr P.J Smith
Rooth
& Wessels INC Pretoria
Tel:
012 452-4123
E-Mail:
admissions@lsnp.org.za
Date
of Hearing: 19 April 2016
Date
of Judgment: 20 June 2016