Brief Summary

Constitutional Law — Admission of Advocates — Constitutionality of section 7(2) of the Advocates’ Act — Applicants challenged the suspension of the first applicant from practice for unprofessional conduct and the constitutionality of the referral rule prohibiting direct acceptance of work from the public by advocates. The first applicant was suspended for six months for accepting work without attorney intervention, while the second applicant sought to declare that non-members of the respondent were not bound by the referral rule. The High Court found no constitutional infringement in section 7(2) and dismissed the applicants' claims. The Constitutional Court held that the applicants failed to identify any constitutional rights infringed by section 7(2) and that the referral rule did not constitute an unconstitutional restriction on the right to practice.

Comprehensive Summary

Summary of Judgment

Introduction

The proceedings were an application for leave to appeal directly to the Constitutional Court against an order of a full bench of the Natal High Court. The applicants were Joaquim Augusto De Freitas (first applicant) and the Independent Association of Advocates of South Africa (second applicant). The respondent was the Society of Advocates of Natal, with the Natal Law Society participating as an intervening party.

The matter originated in September 1996 when the respondent applied in the Natal High Court to strike the first applicant off the roll of advocates. The second applicant and the Natal Law Society sought and obtained leave to intervene. In April 1997 the second applicant launched a counter-application seeking declaratory relief to the effect that advocates who were members of the second applicant (and not of the respondent) were not bound by the referral rule and could accept work directly from the public.

A full bench of the Natal High Court ultimately made an order (i) suspending the first applicant from practice as an advocate for six months following a finding of unprofessional conduct (accepting work directly from the public contrary to the referral rule), and (ii) dismissing the second applicant’s counter-application. Before approaching the Constitutional Court, the applicants sought a certificate from the High Court under rule 18 of the Constitutional Court Rules; the High Court issued a certificate adverse to the applicants on the relevant aspects. The applicants then sought direct leave to appeal to the Constitutional Court.

The dispute concerned, first, the constitutional validity of section 7(2) of the Admission of Advocates Act 74 of 1964 insofar as it empowered the respondent to initiate disciplinary proceedings against advocates who were not members of the respondent, and secondly, the constitutionality of the referral rule (a rule prohibiting advocates from accepting instructions directly from the public without the intervention of an attorney), framed as an alleged infringement of the right to practise a profession.

Material Facts

It was common cause that the first applicant was found by the Natal High Court to have engaged in unprofessional conduct by accepting work directly from members of the public without an attorney, contrary to the referral rule, and that the High Court imposed a six-month suspension from practice.

It was also not in dispute that the respondent, the Society of Advocates of Natal, was generally competent under section 7(2) of the Admission of Advocates Act 74 of 1964 to bring an application for the suspension or striking-off of an advocate, but the applicants disputed the constitutional validity of the provision insofar as it enabled the respondent to institute such proceedings against an advocate who was not a member of the respondent.

The second applicant’s counter-application sought declaratory relief recognising a right for advocates (or at least advocates who were members of the second applicant) to accept work directly from the public without an attorney. The applicants’ constitutional attack on the referral rule was advanced against the background that the Right of Appearance in Courts Act 62 of 1995 broadened rights of appearance for certain attorneys, which the applicants argued placed attorneys in competition with advocates while the referral rule required advocates to rely on attorneys for work.

A further material procedural fact was that the applicants sought to pursue the matter by a direct appeal to the Constitutional Court rather than an appeal to the Supreme Court of Appeal, raising questions about jurisdiction and the appropriate appellate forum, and about whether the interim Constitution or the 1996 Constitution applied. The Constitutional Court, however, did not decide the merits of the constitutional challenges, and expressly refrained from expressing a view on which Constitution applied.

Legal Issues

The central legal questions were, first, whether section 7(2) of the Admission of Advocates Act 74 of 1964 was constitutionally invalid to the extent that it allowed the respondent to initiate disciplinary proceedings against an advocate who was not its member, and whether the applicants had any reasonable prospects of success on that constitutional challenge for purposes of leave.

The second cluster of issues concerned whether, assuming that the challenge to the referral rule raised a constitutional matter (invoking section 22 and section 39(3) of the Constitution of the Republic of South Africa, 1996), it was in the interests of justice for the Constitutional Court to grant leave to appeal directly to it, in circumstances where the Supreme Court of Appeal also had jurisdiction to hear the appeal.

These questions primarily concerned law and the application of constitutional and jurisdictional principles (including the Court’s discretionary “interests of justice” assessment) rather than disputed questions of fact. The Court’s decision on the second issue turned substantially on a value judgment about the proper appellate route and institutional roles, particularly where the dispute implicated common-law rules regulating the legal profession.

Court’s Reasoning

On the first issue, the Court held that the applicants were unable to identify any constitutional right infringed by section 7(2). The Court rejected the applicants’ attempt to characterise the provision as conferring “jurisdiction” over non-members. It explained that section 7(2) does not confer disciplinary jurisdiction on the respondent; rather, it provides the respondent with standing to approach a court for disciplinary relief, while the disciplinary power is exercised by the court.

The Court relied on the High Court’s unanimous view that the respondent’s standing to bring disciplinary matters to court did not depend on section 7(2) in any event. Even before the enactment of section 7(2), courts had recognised the standing of societies of advocates (and also the Attorney-General, and in one case the State Attorney) to initiate proceedings for the disciplining of advocates, including advocates who were not members of the relevant society. In this framing, section 7(2) was treated as consistent with a pre-existing position and not as an unconstitutional expansion of authority over non-members. In consequence, because no infringed right was identified and no constitutional defect was demonstrated, the Court held there were no prospects of success, and leave to appeal on this issue had to fail.

On the second issue, the Court approached the matter through the lens of direct appeals to the Constitutional Court. It emphasised that it is insufficient, for direct leave, merely to show that a matter is a constitutional issue; the applicant must show that there are factors establishing that a direct appeal is justified and that it is in the interests of justice to bypass the ordinary appellate route.

The applicants relied on urgency (effects on the livelihoods of advocates said to be affected), public importance (the contention that the public would benefit through reduced litigation costs), and reduced costs and time if the final constitutional appellate court heard the matter directly. While accepting that time, costs, and public importance are relevant considerations, the Court held that they are not decisive. It reiterated that the interests of justice may require that the Supreme Court of Appeal consider certain matters first.

The Court’s key evaluative reason for refusing direct leave was the nature of the referral rule dispute. The Court treated the referral rule as a matter tied to the common law and long-standing professional practice and noted that regulation of the legal profession and determinations about fitness to practise have historically fallen within the inherent jurisdiction of the superior courts (now the High Courts and the Supreme Court of Appeal). Drawing on its approach in matters involving the development of the common law, the Court stated that, where a constitutional matter implicates common-law development, the Supreme Court of Appeal’s expertise and breadth of jurisdiction make it particularly important that it consider the issue first, and that the Constitutional Court should not ordinarily decide such questions without the Supreme Court of Appeal’s views.

For that reason, the Court concluded that the applicants had not shown that the interests of justice required the Constitutional Court to entertain the appeal directly, to the exclusion of the Supreme Court of Appeal. The Court accordingly refused leave on the second issue as well, and expressly stated that it expressed no view on the merits of the referral-rule challenge, on prospects of success, or on the correctness of the High Court’s approach to the applicable Constitution, treating those matters as for the court that might hear any further appeal or leave application.

On costs, the Court addressed the reserved costs of the High Court rule 18 proceedings and the costs in the Constitutional Court. It considered that the matter reached the Constitutional Court because of the applicants’ deliberate choice to proceed directly, which was opposed by the other parties and was ultimately shown to be incorrect. At the same time, it recognised there had been uncertainty at the time about the proper appellate route and that the merits had not been decided. The Court therefore adopted a conditional costs approach aimed at encouraging finality without undue delay: if the applicants took the matter further promptly, costs would follow the outcome in the further proceedings; if they did not, they would bear the costs.

Outcome and Relief

The Constitutional Court refused the application for leave to appeal directly to it on both the challenge to section 7(2) of the Admission of Advocates Act 74 of 1964 and the challenge to the referral rule.

The Court made a conditional costs order. If the applicants took the matter further, the costs were to be costs in the cause, provided that further proceedings were initiated within one month from the date of the judgment. If the applicants failed to initiate further proceedings within one month, or were unable to secure leave to appeal, they were ordered to pay the costs of the Constitutional Court application, including the costs of the rule 18 proceedings in the High Court, and the respondent’s costs were to include the costs of two counsel.

Cases Cited

Society of Advocates of Natal v De Freitas and Another (Natal Law Society Intervening) 1997 (4) SA 1134 (N).

Johannesburg Bar Council v Stein 1946 TPD 115.

Society of Advocates of Natal and Another v Knox and Others 1954 (2) SA 246 (N).

Attorney-General v Tatham 1916 TPD 160.

State Attorney v L (1895) 2 OR 214.

S v Pennington and Another 1997 (4) SA 1076 (CC); 1997 (10) BCLR 1413 (CC).

Member of the Executive Council for Development Planning and Local Government in the Provincial Government of Gauteng v Democratic Party and Others [1998] ZACC 9; 1998 (7) BCLR 855 (CC).

Amod v Multilateral Motor Vehicle Accidents Fund (CCT 4/98) (Constitutional Court, 27 August 1998) (unreported).

The General Council of the Bar of South Africa v Van der Spuy (Case No 13013/96) (Transvaal High Court, 12 March 1998) (unreported).

De Freitas and Another v The Society of Advocates of Natal (Case No 2834/96) (Natal High Court, 18 December 1997) (unreported).

Pretoria Balieraad v Beyers 1966 (1) SA 112 (T).

De Villiers and Another v McIntyre NO 1921 AD 425.

Beyers v Pretoria Balieraad 1966 (2) SA 593 (T).

Pienaar and Versveld v Incorporated Law Society 1902 TS 11.

Prokureursorde van Transvaal v Kleynhans 1995 (1) SA 839 (T).

Algemene Balieraad van Suid Afrika v Burger en ’n Ander 1993 (4) SA 510 (T).

Du Plessis and Others v De Klerk and Another [1996] ZACC 10; 1996 (3) SA 850 (CC); 1996 (5) BCLR 658 (CC).

Gardener v Whitaker [1996] ZACC 11; 1996 (4) SA 337 (CC); 1996 (6) BCLR 775 (CC).

Legislation Cited

Admission of Advocates Act 74 of 1964, section 7(2).

Right of Appearance in Courts Act 62 of 1995.

State Attorney Act 56 of 1957.

Attorneys Act 53 of 1979.

Constitution of the Republic of South Africa Act 200 of 1993 (interim Constitution), sections 101(5) and 35(3).

Constitution of the Republic of South Africa, 1996, sections 22, 39(2), 39(3), 167(6), 168(3), and 173, and Schedule 6 item 17.

Constitutional Court Complementary Act Amendment Act 79 of 1997.

Rules of Court Cited

Constitutional Court Rules, 1995, rule 18 and rule 18(e).

Held

The Constitutional Court held that leave to appeal directly had to be refused. On the challenge to section 7(2) of the Admission of Advocates Act 74 of 1964, the applicants failed to identify any constitutional right infringed, and the provision was understood as conferring standing on the respondent rather than disciplinary jurisdiction, with disciplinary power residing in the court. This resulted in a finding that the applicants had no prospects of success on that issue for purposes of leave.

On the challenge to the referral rule, the Court held that even if constitutional issues were implicated, the applicants did not establish that it was in the interests of justice for the Constitutional Court to hear the matter as a direct appeal, particularly given the common-law character of the rule and the appropriateness of the Supreme Court of Appeal considering such issues first. The Court made a conditional costs order linked to whether the applicants pursued further proceedings within a stipulated period.

LEGAL PRINCIPLES

The judgment applied the principle that statutory provisions like section 7(2) of the Admission of Advocates Act 74 of 1964 may operate to confer standing to initiate disciplinary proceedings, while the disciplinary jurisdiction and power remain with the court. On this approach, the mere fact that a professional body may approach the court to discipline a practitioner does not, without more, establish a constitutional infringement, particularly where similar standing was recognised at common law.

The judgment reaffirmed that direct appeals to the Constitutional Court under section 167(6) of the Constitution of the Republic of South Africa, 1996 require more than the presence of a constitutional issue; an applicant must demonstrate that a direct appeal is in the interests of justice. In assessing the interests of justice, time, cost, and public importance are relevant but not exhaustive considerations.

The Court applied the principle that where a constitutional matter implicates the application or development of the common law, it will not ordinarily be appropriate for the Constitutional Court to decide the matter directly without the benefit of prior consideration by the Supreme Court of Appeal, given that court’s expertise and broad appellate jurisdiction, including in constitutional matters. The regulation of professional conduct in the legal profession was treated as an area historically managed through the inherent jurisdiction of the superior courts, reinforcing the appropriateness of Supreme Court of Appeal scrutiny before Constitutional Court intervention.

Finally, the judgment illustrates a costs approach in procedural applications where an incorrect forum choice is made in circumstances of some legal uncertainty: the Court may craft a conditional costs order to balance fairness, discourage unnecessary proceedings, and promote finality without delay.

De Freitas and Another v Society of Advocates of Natal (Natal Law Society Intervening) (CCT2/98) [1998] ZACC 12; 1998 (11) BCLR 1345 (15 September 1998)