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[2020] ZASCA 170
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South African Legal Practice Council v Alves and Others (1255/2019) [2020] ZASCA 170; 2021 (4) SA 158 (SCA) (14 December 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 1255/2019
In
the matter between:
THE SOUTH AFRICAN LEGAL
PRACTICE
COUNCIL APPELLANT
and
REEVA-JOY
ALVES FIRST
RESPONDENT
MITCHELL DE
BEER SECOND
RESPONDENT
ETIÈNNE
MENTOOR THIRD
RESPONDENT
JANDRÈ
ROBBERTZE FOURTH
RESPONDENT
ZELEK
SING FIFTH
RESPONDENT
STACEY
SUNDELSON SIXTH
RESPONDENT
MICHAEL MULLER VAN
STADEN SEVENTH
RESPONDENT
DAVID
WHITCOMB EIGHTH
RESPONDENT
ADRI
THIART
NINTH RESPONDENT
Neutral
citation:
The
South African Legal Practice Council v Alves and Others
(Case
no 1255/2019)
[2020] ZASCA 170
(14 December 2020)
Coram:
MAYA P, SALDULKER and PLASKET JJA and
EKSTEEN and UNTERHALTER AJJA
Heard
:
13 November 2020
Delivered
:
This judgment was handed down
electronically by circulation to the parties' representatives via
email, publication on the Supreme
Court of Appeal website and release
to SAFLII. The date and time for hand-down is deemed to be 10h00 on
14 December 2020.
Summary:
Legal Practice Act
28 of 2014
– legal practitioners to be admitted and enrolled
either as advocate or attorney –
s 115
preserves the right of
any person who qualified for admission as an advocate, attorney,
conveyancer or notary prior to the commencement
of the Act to be so
admitted thereafter – preservation of right extends ad
infinitum –
s 32
empowers Legal Practice Council to convert
enrolment of a legal practitioner without recourse to the high court
–
s 32
does not detract from jurisdiction of the high court to
order the Legal Practice Council to enrol a legal practitioner as an
advocate
where the practitioner qualifies for enrolment as such in
terms of the
Legal Practice Act.
ORDER
On
appeal from:
Western
Cape Division of the High Court, Cape Town (Hlophe JP and Baartman J,
sitting as court of first instance):
The appeal is dismissed.
JUDGMENT
Eksteen
AJA (Maya P, Saldulker and Plasket JJA and Unterhalter AJA
concurring)
[1]
The crisp issue in this appeal is whether the first to the ninth
respondents (to whom I shall refer, for convenience, as applicants),
who had all been admitted and enrolled as attorneys, were entitled to
rely on the provisions of s 115 of the Legal Practice
Act 28 of
2014 (the LPA) in order to be enrolled as advocates. The Western Cape
Division of the High Court, Cape Town (the high
court) ruled in their
favour and ordered the South African Legal Practice Council (the LPC)
to remove their names from the roll
as attorneys and to enrol them as
advocates. The appeal against this ruling is with leave of the high
court.
[2]
Prior to the hearing of the appeal, the second to ninth applicants
all completed their pupillage at the Cape Bar and the LPC
approved
the conversion of their enrolment as attorneys to advocates in terms
of s 32 of the LPA. The appeal is accordingly moot
in respect of
these applicants. However, it remains live in respect of the first
applicant. She has taken no part in the appeal
and indicated that she
would abide the decision of this Court. In addition the Cape Bar
sought and obtained leave to be heard as
amicus
curiae
.
[3]
At the time of the application each of the applicants were, as I have
said, attorneys who wished to practice as advocates. Seven
of them
had been admitted as attorneys prior to 1 November 2018
[1]
in terms of the Attorneys Act 53 of 1979 (the Attorneys Act). The
remaining two (the sixth and ninth applicants) were admitted
and
enrolled as attorneys in terms of the LPA after it came into
operation. Only the first applicant had applied to the LPC, before
the application to court, for her enrolment to be converted to that
of an advocate in terms of s 32 of the LPA. Her application
was
refused as she did not meet the requirements laid down by the LPC in
its rules. In particular, she had not completed a trial
advocacy
programme.
[2]
Hence her application to court.
[4] In her application she relied on the provisions of s
115 of the LPA, as did the remaining applicants. Section 115 is to be
found
under Chapter 10 of the LPA headed ‘NATIONAL FORUM AND
TRANSITIONAL PROVISIONS’. The section provides:
‘
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.’
The
date referred to in the section is 1 November 2018, the date on which
the LPA became fully operational.
[5]
The interpretation of this provision in the context of the LPA lies
at the heart of the appeal. The principles applicable to
the
interpretation of documents, including statutes, are well settled. It
is however useful to restate the essence of the principles
as
summarised in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[3]
para 18, where this Court stated:
‘
Interpretation
is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument,
or
contract, having regard to the context provided by reading the
particular provision or provisions in the light of the document
as a
whole and the circumstances attendant upon its coming into existence.
Whatever the nature of the document, consideration must
be given to
the language used in the light of the ordinary rules of grammar and
syntax; the context in which the provision appears;
the apparent
purpose to which it is directed and the material known to those
responsible for its production. Where more than one
meaning is
possible each possibility must be weighed in the light of all these
factors. The process is objective not subjective.
A sensible
meaning is to be preferred to one that leads to insensible or
unbusinesslike results or undermines the apparent purpose
of the
document.’
[6]
It is convenient first to consider the circumstances which gave rise
to the promulgation of the LPA. For centuries, South Africa
had been
served by a divided legal profession. Prior to the LPA, the admission
of advocates was governed by the Admission of Advocates
Act 74 of
1964 (the Advocates Act). Section 3 of the Advocates Act
required an applicant for admission to establish that they
were more
than 21 years of age, duly qualified, a fit and proper person and a
South African citizen. Generally speaking, the qualification
required
was an LLB degree obtained from a South African university. No
further training was required in order to practice.
[7]
For many years advocates were organised in various voluntary
associations regulated by their respective Bar Councils and
affiliated
to the General Council of the Bar of South Africa (the
GCB). The Bars were self-regulated and the GCB was a federal body
established
by the Bars. There was no statutory regulatory body. The
Bars developed a comprehensive pupillage system to provide vocational
training and education to aspirant members. However, advocates were
not obliged to be members of a Bar affiliated to the GCB. Various
other associations of advocates were established which were not
affiliated to the GCB. Some offered vocational training of their
own
and others did not. Moreover, because the Advocates Act did not
oblige advocates to belong to an association a number of admitted
advocates practiced outside of any association, without any
vocational training and free from any regulation.
[8] By contrast attorneys were regulated by law
societies, established by statute, and all attorneys were subject to
regulation
by these bodies. The Attorneys Act required candidate
attorneys who had obtained an LLB degree or BProc degree from a South
African
university to undergo two years of articles and to pass an
admission examination prior to their admission as attorneys. There
was
accordingly a marked disparity between the admission requirements
for advocates and attorneys.
[9]
Once admitted as an advocate or as an attorney, a practitioner
seeking to convert from one branch of the profession to the other
was
required first to obtain an order of court removing their name from
the roll of one branch and re-enrolment on the other. When
an
advocate wanted to become an attorney they were required,
irrespective of their experience, to first undergo a period of
articles
before they could be admitted as such. An attorney seeking
to become an advocate was entitled (subject to what is set out later)
to their immediate admission as such. However, if they wished to
practice at a Bar affiliated to the GCB, they were often required
by
the Bar Council concerned to undergo a period of pupillage before
they could obtain membership. These inequalities and perceived
obstacles to entry into the profession and transfer between the
branches thereof, together with other issues not material to the
present debate, gave rise to the LPA.
[4]
One of the principal purposes of the LPA was to create a single
unified statutory body to regulate the affairs of all legal
practitioners
and all candidate legal practitioners in pursuit of the
goal of an accountable, efficient and independent legal
profession.
[5]
It also sought to level the playing field by prescribing compulsory
vocational training and a competency-based examination or assessment
prior to admission and enrolment for both advocates and attorneys.
[6]
[10]
The LPA does not purport to merge the functions of advocates and
attorneys. It maintains the distinction between advocates
and
attorneys and acknowledges the different training required for these
functions. Thus, a ‘pupil’ is defined in the
LPA as a
person undergoing practical vocational training with a view to being
‘admitted and enrolled’ as an advocate.
[7]
An ‘advocate’ is likewise defined as a legal practitioner
who has been ‘admitted and enrolled as such’
under the
LPA.
[8]
Advocates and attorneys collectively are referred to as ‘legal
practitioners’. Thus, the latter term is defined in
the LPA as
meaning an advocate or attorney admitted and enrolled as such in
terms of s 24 and 30 respectively.
[9]
The distinction is material.
[11]
The admission of all legal practitioners, both advocates and
attorneys, is governed by the provision of s 24. It stipulates
that
no one may practice as a legal practitioner (that is either as an
advocate or as an attorney) if they are not admitted and
enrolled to
practice ‘as such’ in terms of the LPA. The LPA does not
provide for practice as a legal practitioner.
It provides for three
forms of practice, as an attorney, as an advocate practicing on a
referral basis only and as an advocate
accepting work directly from
the public.
[10]
Section 24 accordingly requires a court to admit a legal practitioner
either as an advocate or as an attorney and to authorise
the LPC to
enrol them as such.
[12]
The maintenance of a roll of legal practitioners is entrusted to the
LPC. In doing so it was required at the commencement of
the LPA to
consolidate the rolls of admitted attorneys and advocates which
existed prior to the LPA into one roll
[11]
referred to in s 30(3). New entrants to the profession are
required to apply to the LPC for enrolment against payment of a
prescribed fee.
[12]
Once a legal practitioner has been admitted and acquired the
authority of the high court to be enrolled, they are entitled to be
enrolled as such, subject to payment of the prescribed fee, and the
LPC has no discretion to decline enrolment. The roll must reflect
the
form of practice pursued by the practitioner and the particulars of
the order of court in terms of which they were admitted.
[13]
[13]
The LPA regulates the professional conduct and disciplinary
proceedings in respect of legal practitioners.
[14]
It is, however, only the high court that can strike their name from
the roll of legal practitioners
[15]
and it retains the jurisdiction to adjudicate upon and make orders in
respect of matters concerning the conduct of legal practitioners.
[16]
[14]
All of these provisions reinforce the fact that legal practitioners,
whether practicing as advocates or attorneys, are officers
of the
high court. They are admitted by the court which authorises their
enrolment in the practice in which they are qualified
and they owe a
special ethical duty to the court. The high court retains the
oversight over their conduct and the jurisdiction
to pronounce on
matters concerning their conduct. To this extent they practice under
the auspices of the high court.
[15]
Against this background, the provisions of s 115 must be construed in
the context of the LPA as a whole, with due regard to
the history
giving rise to its existence and the purpose to which it is directed.
On behalf of the appellant three arguments were
advanced as to why
the applicants could not avail themselves of the provisions of s 115.
Firstly, it was contended that on a proper
construction of the LPA, s
115, being a transitional provision, applied only to applications for
admission which were pending on
1 November 2018. As none of the
applicants had lodged an application for admission prior to the
commencement of the LPA, s 115
did not apply to them. Secondly, save
for the sixth and ninth applicants, who were admitted as attorneys
after the LPA came into
effect, the remaining applicants did not
qualify for admission as advocates under the Advocates Act
immediately before 1 November
2018 because the Advocates Act required
that an attorney had first to remove their name from the roll of
attorneys before being
able to qualify for admission as an advocate.
They had not done so. Thirdly, it was argued that the LPA placed the
process of enrolment
in the hands of the LPC, including the
conversion of an enrolment, and accordingly, where an applicant
sought to convert their
enrolment from that of an attorney to an
advocate they were obliged to do so in terms of s 32 of the LPA. The
result, it was contended,
was that the high court did not have the
jurisdiction to make the order which it did.
[16] Section 115 is set out earlier. Ordinarily where
the legislature intends that a transitional provision would apply
only to
proceedings commenced prior to the promulgation of the Act
concerned it says so in terms. An example of such a provision is
found
in s 116(2) of the LPA which provides:
‘
Any
proceedings in respect of the suspension of any person from practice
. . . which have been instituted in terms of any law repealed
by this
Act, and which have not been concluded at the date referred to in
section 120(4), must be continued and concluded as if
the law had not
been repealed . . .’
[17]
No similar intention appears from the provisions of s 115. On the
contrary, s 115 applies to any person who immediately
before the
commencement of the LPA was entitled to be admitted and enrolled as
an advocate, attorney, conveyancer or notary. It
contains no
limitation to this right. On a consideration of the language used in
the light of the ordinary rules of grammar and
syntax the section
must be interpreted to mean that ‘whoever can show that they
satisfied the criteria in s 3 of the [Advocates
Act] and, had an
application been made whilst the [Advocates Act] was still in force,
were entitled to admission’.
[17]
The purpose to which the section is directed is to preserve the
rights of those who qualified for admission and enrolment prior
to
the LPA to be admitted and enrolled thereafter under the LPA. Mr
Koen, on behalf of the LPC, was constrained to acknowledge
that the
interpretation contended for by the LPC would require a considerable
reading-in to the section of words which do not appear
therein. The
reading-in would require, in relevant part, that s 115 is interpreted
to mean: ‘Any person who, immediately
before the date referred
to in s 120(4), had made an application and was entitled to be
admitted and enrolled’. He
contended, that reading-in
such additional words was the only manner in which to give meaning to
the section as a transitional
arrangement. The argument cannot be
sustained. Section 115 finds application in respect of candidates who
qualified for admission
prior to commencement of the LPA. It
preserves their right to be admitted under the LPA. The position was
captured thus by Robeson
J in
Ex
parte Bakkes and Similar Cases
:
[18]
‘
I
am respectfully of the view that there is no ambiguity in s 115 of
the LPA. It is clear from the section that persons who qualified
for
admission in terms of the AAA prior to 1 November 2018 are
entitled to be admitted and enrolled as advocates. The reference
to
admission and enrolment “in terms of this Act” means in
my view nothing more than that the LPA may be used as a
vehicle for
the admission of such persons, given that the AAA has been repealed.
To require such a person to satisfy the requirements
of the AAA 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 and enrolled if they were so
entitled prior to 1 November 2018.
This could not have been the
intention of the legislature.’
[18]
The vast majority of candidates for admission may be expected to be
young persons setting out upon a career in the practice
of law, who
have acquired their qualifications in the not too distant past.
Section 115 may indeed be relied upon
ad
infinitum
by any
person who qualified prior to the commencement of the LPA, however,
the legislature must be taken to have foreseen this
when preserving
their rights. The numbers of such people will be relatively small and
would inevitably dwindle and eventually disappear.
It is in this
respect that the provision is transitional.
[19]
[19]
I turn to the second argument advanced on behalf of the LPC.
Section 3 of the Advocates Act sets out the requirements
which
had to be met for admission as an advocate under that Act. It
required an applicant who had previously been admitted to practice
as
an attorney to satisfy the court, inter alia, that their name had
been removed from the roll of attorneys on their own application.
[20]
It was a prerequisite for admission as an advocate. The requirement
had a history of its own which developed from the divided profession
which existed in South Africa prior to the LPA. When the Advocates
Act was first enacted s 3(1)
(d)
contained, after the words ‘. . . on his own application’,
the following:
‘
.
. . and that for a continuous period of not less than six months
immediately before the date of his application to be so admitted
he
has in no way been associated or connected with the practice of, or
acted directly or indirectly as, an attorney, notary or
conveyancer
in the Republic or elsewhere . . .’
[21]
[20]
The rule originally arose from a judicial practice developed in the
early 1900s of a ‘cooling off’ period.
[22]
The requirement was however deleted from the Advocates Act by s 16 of
the General Law Amendment Act 29 of 1974. Thereafter a practice
developed for attorneys who wished to be admitted as advocates to
seek in one application the simultaneous removal of their name
from
the roll of attorneys and their admission as an advocate.
[21]
I revert to the provisions of s 115. In
Goosen
the full court correctly considered the meaning of ‘entitled’
in the section. It held:
[23]
‘
The
word “entitled” is a common enough term. “Entitled
to be admitted and enrolled” is the phrase to be
given meaning.
The concept of an entitlement is consistent only with the existing
possession of a right. The Oxford English Dictionary
. . . defines
the term as the giving of a “rightful claim” to anything.
The term “entitled” in the context
of s 115, and indeed
the context of the LPA has no convoluted inner, obscure meaning. It
is simply shorthand for saying that the
candidate fulfilled all the
[Advocates Act] . . . criteria at a time when that candidate could
have brought an application, ie
before 1 November 2018. As the
“right” to which a candidate is “entitled” is
extinguished on 31 October
2018, the answer to the question whether
one can apply after 31 October 2018, is answered purely by whether
the substance of the
rights in s 3 of the [Advocates Act] . . . can
survive the repeal. It is the function of s 115 to preserve those
“entitlements”
or “rights”.’
[22]
So, were the applicants entitled prior to the commencement of the LPA
to their admission as advocates? It is common cause that
each of the
applicants met all of the requirements of s 3 of the Advocates Act,
save that their names remained on the roll of attorneys.
After the
‘cooling off’ period was removed from the provisions of s
3 any admitted attorney who met the requirements
for admission as an
advocate was entitled in one application to the removal of their name
from the roll of attorneys and their
admission as an advocate. That
right the applicants acquired prior to the commencement of the LPA.
To hold otherwise would be overly
technical and would undermine the
purpose of the section. For these reasons the second argument, too,
cannot be sustained.
[23]
The third argument advanced relates to the provisions of s 32 of the
LPA. Section 32 empowers the LPC to convert an enrolment
from one
form of practice to another without recourse to the high court. The
section is designed to facilitate such movement and
to eliminate the
obstacles and inequalities which previously impeded it. To that end
the council is empowered by subsec 32(3) to
make rules setting out
the circumstances under which a legal practitioner may apply to it
for conversion of their enrolment and
the requirements such legal
practitioner must comply with. Thus the LPC may, by its rules, enable
experienced practitioners to
move from one form of practice to
another, without undergoing all the vocational training prescribed
under s 26 for admission to
and enrolment in such practice. As a
matter of logic, however, in my view, it cannot demand that an
attorney seeking to convert
their enrolment to an advocate must first
attain a greater qualification than that set by the LPA for admission
by the high court.
To the extent that it did so in respect of the
first applicant it exceeded its powers.
[24]
While s 32 does entrust the regulation of conversion to the LPC, its
power is not exclusive because legal practitioners under
the LPA
retain the right to be enrolled as advocates under the preservation
of rights in s 115. There is nothing in s 32, or in
the structure of
the LPA as a whole, which suggests that the high court is precluded
from admitting, and authorising the enrolment
of, a practitioner who
previously practiced as an attorney, as an advocate, in circumstances
where the legal practitioner
qualifies for admission as an advocate
in terms of the LPA. In these circumstances there is no basis for the
exercise of powers
by the LPC under s 32. The conversion is in
effect done by the high court under the preservation provision. For
the reasons
set out earlier the applicants all qualified for
admission as advocates in terms of s 115.
[25]
There remains the issue of costs. The appeal is a matter of
considerable interest and importance to the legal profession in
seeking clarity on the interpretation of the LPA. In these
circumstances, fairly, neither the LPC nor the
amicus
curiae
sought an
order for costs.
[26] In the result the appeal is dismissed.
__________________________
J W EKSTEEN
ACTING JUDGE OF APPEAL
Appearances
For
appellants: S Koen
Instructed
by: Bisset Boehmke McBlain, Cape
Town
Webbers,
Bloemfontein
Amicus
Curiae
:
D Borgström SC (with him T Sarkas)
Instructed
by: Riley Incorporated
[1]
The LPC came into full operation on 1 November 2018. Chapter 10
(Transitional provisions) had previously come into operation
on 1
February 2015.
[2]
Section 32(3) of the LPA empowers the LPC to make rules setting out
the circumstances under which a legal practitioner may apply
for
conversion of his or her enrolment under that section and to lay
down any requirements which such practitioner must comply
with.
[3]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012] All SA 262
(SCA); [2012] ZASCA 13; 2012 (4) SA 593.
[4]
The purpose of the LPA is set out in s 3 thereof.
[5]
Section 3
(c)
.
[6]
Section 26(1)
(d)
.
7
A ‘candidate attorney’ is similarly defined as a person
undergoing vocational training with a view to being ‘admitted
and enrolled as an attorney’.
8
‘Attorney’ bears a corresponding meaning.
[9]
‘Candidate legal practitioner’ is similarly defined as
being persons undergoing vocational training either as a candidate
attorney or as a pupil.
[10]
Section 34.
[11]
Section 114.
[12]
Section
30(1)
(b)
(i).
[13]
Section 30(3)
(a)
and
(b)
.
[14]
Chapter 4 s 36-44.
[15]
Section 40(3)
(a)
(iv).
[16]
Section
44.
[17]
See
Ex
Parte
Goosen
and Others
[2019] ZAGPJHC 68;
2019 (3) SA 489
(GJ) para 51.
[18]
Ex
Parte Bakkes and Similar Cases
[2019]
ZAECGHC 3;
2019 (2) SA 486
(ECG) para 12.
[19]
Ibid
para 13.
[20]
Section
3(1)
(d)
of the Advocates Act.
[21]
See
In
Re Rome
1991
(3) SA 291
(A) at 308C-D.
[22]
See
Ex
Parte Plowden-Wardlaw
1903 TS 35
;
Ex
Parte Beyers
1904 TS 567.
[23]
Goosen
fn 16 above
para
26.