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[2016] ZAGPPHC 905
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Ex Parte Mdyesha (27320/2016) [2016] ZAGPPHC 905; 2018 (4) SA 468 (GP) (4 August 2016)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Reportable
Of
interest to other Judges
CASE
NO:
27320/2016
4/8/2016
In
the ex
parte
application of:
NASIPHI
NALEDI
MDYESHA
Applicant
Heard:
31 May 2016
Delivered:
4 August 2016
Coram:
Makgoka
et
Molefe JJ
Summary:
Admission as an attorney - section 15(1)(b)(ivA) of the Attorneys Act
53 of 1979 - attendance of practical training course
prior to
registration or service of articles of clerkship- whether strict
compliance is required.
JUDGMENT
MAKGOKA.J
[1]
The issue in this application is whether strict compliance with the
provisions of s 15(1)(b)(viA) of the Attorneys Act 53 of
1979 (the
Act) is required. That section requires a candidate attorney to
attend a practical training during or after serving articles
of
clerkship. On 31 May 2016, my Sister Molefe J and I admitted the
applicant (Ms Mdyesha) as an attorney of this Court, despite
she
having attended the practical legal training before she entered into
a contract of articles of clerkship.
[2]
We reserved judgment on the question raised by the Law Society of the
Northern Provinces (the Law Society) as to whether her
attendance of
the practical legal training before registration of her articles was
regular. The facts are as follows. Ms Mdyesha
entered into a fixed
term contract of employment with a firm of attorneys with effect from
15 January 2014, which had a probation
period ending March 2014. It
is common cause that this contract does not qualify as a contract of
articles of clerkship, and it
did not purport to be such. During
February 2014, she commenced a six-month attendance of the practical
legal training course offered
by the Law Society of South Africa's
Legal Education and Development (L.E.A.D). This course is approved by
the Law Society in terms
of s 15(1)(b)(ivA) of the Attorneys Act 53
of 1979 (the Act).
[3]
On 1 April 2014, after the expiry of the probation period in terms of
the fixed term contract of employment, referred to above,
Ms Mdyesha
entered into a contract of articles of clerkship with her principal
for two years. That contract was registered by the
Law Society on 30
May 2014. In July 2014 she satisfactorily completed the practical
training course with full attendance, and was
issued a certificate to
that effect. Ms Mdyesha successfully completed her period of articles
of clerkship on 31 March 2016. During
April 2016 she passed the final
part of the attorneys entrance examinations prescribed by s 14(1)(a),
(b) and (c) of the Act, having
passed the other parts progressionally
from February 2015. On 8 April 2016 she applied to this Court for her
admission as an attorney.
[4]
On 26 May 2015, upon perusal of her application, the Law Society
directed a letter to the Registrar of this Court as follows:
'(T)he applicant attended
the practical training course
prior
to the date of service of
articles of clerkship in contravention of the requirement that the
course must be attended to
during
or after the expiry of a
contract of articles of articles;
Although the Law Society
is of the view that it may not be justified to formally oppose the
application, the Law Society requires
the Court's guidance in this
instance with regard to the question of whether strict compliance
with the peremptory requirements
of Section 15(1)(b)(ivA) of the Act
is required (which appears to be the case)'.
(emphasis
in the original text)
[5]
Section 15(1)(b)(ivA) of the Act, which governs the admission and re-
admission of attorneys, reads as follows:
(1) Unless cause to the
contrary to its satisfaction is shown, the court shall on application
in accordance with this Act, admit
and enroll any person as an
attorney if-
(a) ...
(b) the Court is
satisfied that such person has satisfied the following requirements
or, where applicable, has been exempted therefrom
in terms of the
provisions of this Act, namely that such person-
(ivA) (aa) during his
term of service under articles or contract of service, or after the
expiry of his articles or contract of
service; or
(bb) after he has been
exempted in terms of this Act from service under articles of
clerkship,
has attended a training
course approved by the society of the province in which he completed
his service under articles or contract
of service, or, in the case of
section 2A(c), has attended a training course approved by the society
of the province in which the
candidate attorney intends to practice,
and has completed such training course to the satisfaction of that
society:..'
[6]
The section is therefore clearly peremptory: a candidate attorney
must attend the legal practical training course during or
after the
expiry of his or her articles of clerkship, and not before. However,
as explained in
Maharaj and others v Rampersad
1964 (4) SA 638
(A) at 646C, a finding that a legislative provision is peremptory is
not the end of the matter. The Court must further enquire
whether it
was fatal that it had not been complied with. The
Appellate Division laid down the following test:
'This enquiry postulates
an application of the injunction to the facts and a resultant
comparison between what the position is,
and what, according to the
injunction, it ought to be. It is quite conceivable that a Court
might hold that, even though the position
as it is not identical with
what it ought to be, the injunction has nevertheless been complied
with. In deciding whether there
has been compliance with the object
sought to be achieved by the injunction and the question of whether
this object has been achieved,
are of importance.'
[7]
As observed by this Court in Ex
Parle Mothu/oe (Law Society of
Transvaal lnteNening)
1996 (4) SA 1131
(T) at 1137H-1138F the
trend in interpretation is 'away from the strict legalistic to the
substantive.' Once it is established
that a legislative provision is
peremptory and the question arises whether exact compliance therewith
is required, the answer is
to be sought in the purpose of the
statutory requirement which is to be found ascertained from its
language read in the context
of the statute as a whole.
[8]
With regard to the present application, the purpose of s
15(1)(b)(viA) is, among others, to ensure that candidate attorneys
are adequately equipped in the practical aspects of attorney's work
before they are admitted to the profession of attorney. This
is
achieved through serving articles of clerkship and the practical
training course. If both are satisfactorily completed, the
object of
the legislation is achieved, despite the fact that the sequence in
which they were completed is not in the order decreed
in the section.
Would the sequence in which the two were completed have any bearing
on the competence of the candidate? Would the
adequacy of the minimum
practical skills acquired by a candidate be affected by the sequence?
In my view, the answer is decidedly
No to both questions.
[9]
There is another basis on which the Court is entitled to depart from
the clear language of a statute. That is where it would
lead to a
result contrary to the intention of the legislature, as shown by the
context or by such other considerations as the Court
is justified in
taking into account. See in this regard,
Minister of Health and
Another NO v New Clicks South Africa (Pty) Ltd (Treatment Action
Campaign and Another
as Amicus Curiae)
2006 (2) SA 311
(CC) para
232. See also
S and another v Acting Regional Magistrate, Boksburg
and another
2011 (2) SACR 274
(CC) the Constitutional Court para
22.
[10]
The other consideration to be borne in mind when reading s
15(1)(b)(viA) is that of entry into the profession. It is a notorious
fact that thousands of law graduates struggle to obtain articles of
clerkship. The majority of those are black graduates from
historically disadvantaged universities. In this regard, Lucrecia
Seafield makes the following apt observations:
'The South African system
has been notorious for its quality of education and inaccessibility.
For those who were able to qualify
for entry into universities, the
excessive fees at these institutions made it almost impossible to
complete a three year degree,
not to mention a four year
degree......Most students had to depend on bursaries from private
companies and these entities only
allocated bursaries to a few black
students. The few graduates who are able to finish their academic
career face another stumbling
block securing articles (of clerkship}
that are a necessary requirement for admission to the legal
profession. A great disparity
exists between the numbers of those who
qualify academically and those who obtain articles. Given problems of
lack of opportunity
and access, a significant percentage of the law
graduates will not be able to secure articles of clerkship in the
attorneys' profession
and will therefore not be able to enter into
the profession. Given the historic imbalance in the country, there is
no doubt that
the worst affected graduates would be those from the
historically disadvantaged black universities.’
[1]
[11]
From the perspective of entry into the profession, for many
graduates, the practical legal training course offers a realistic
gateway to obtaining articles of clerkship. It enhances their chances
in that regard because potential principals would, logically,
prefer
candidate attorneys who had completed a practical training course to
those who have not. By insisting on registration or
service of
articles before a candidate attends the practical training course
would have the effect that many candidates could be
denied the
opportunity to enter the profession. This would obviously lead to a
result contrary to the intention of the legislature.
In any event,
our courts have routinely admitted candidates who had attended the
practical training course before they entered
into articles of
clerkship. See for example,
Ex Parle Ndabanganye
2004 (3) SA
415
(C) paras 3-5.
[12]
At the risk of repetition, to insist on strict compliance with the
provisions of section 15(1)(b)(viA) would entail Ms Mdyesha,
and many
other candidate attorneys in her position, having to repeat the
attendance of the practical training course, despite having
substantively and competently completing the course - an absurdity
that clearly could not have been contemplated by the legislature.
I
therefore conclude that the words of s 15(1)(b)(viA) of the Act,
clear and unambiguous as they appear to be on the face thereof,
should be read in the light of the purpose of the Act and the
consideration that entry into the profession should be eased, and
not
stifled. I therefore conclude that strict compliance with the
peremptory language is not required.
[13]
Before I conclude, I have to remark on the the practice of requiring
potential candidate attorneys to sign pre-articles contracts
with
probationary periods before entering into articles of clerkship, as
was the case with Ms Mdyesha. In
Ex Parle Mahon
2010 (2) SA
511
(GNP) para 30, such practice was deprecated by this Court. The
Law Society's attention was drawn to the potentially prejudicial
results of this practice as being open to abuse. It does not appear
that the Law Society has taken any steps to discourage
this
practice, as Ms Mdyesha's contract was signed four years after
Mahon
was decided. Although the judgment was overturned by the Supreme
Court of Appeal, the caution by this Court on this aspect was
endorsed.
See
Law
Society
of the Northern Provinces v Mahon
2011 (2) SA 441
(SCA);
[2011] 2
All
SA 481
(SCA) para 35.
[14]
The sum total of all the considerations above is that a candidate
attorney may well attend the practical training course before
he or
she registers or serves articles of clerkship, despite the peremptory
provisions of s 15(1)(b)(viA) of the Act. The Court
is entitled to
condone such non compliance with the section. It is on that
basis that we condoned Ms Mdyesha's attendance
of the practical
training course before she concluded a contract of articles of
clerkship.
____________________
T.M.
Makgoka
Judge
of the High Court
I
agree
____________________
D
Molefe
Judge
of the High Court
Date
of hearing:
31 May 2016
Judgment
delivered:
4 August 2016
Appearance:
For
the Applicant:
Adv. M Lennox
[1]
Na'lm A.A.A. (ed) (University of Pennsylvania Press, Philadelphia
2003) Human Rights Under African Constitutions: Realizing the
Promise for Ourselves 330-331.