IDGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NO: 121865/2025
( I) REPORTABLE: YES
(2) OF' INTEREST TO OTHER JUDGES: YES
(3) REVISED.
DATE: 14 MAY 2026
SIGNATURE
In the matter between:
KGOMOTSO RAMALEPE
MARWESHE ATTORNEYS
and
MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
THE LEGAL PRACTICE COUNCIL
BLACK LA WYERS ASSOCIATION
Firsf Applicant
Secon Applicant
First Respondent
I Second Respondent
. I Thtrd Respondent
Summary: Attorneys ' rights to appear in the High Court - Legal
1
rac tice A ct
28 of 2014 - section 25(3)(a) thereof, limiting the right ff attorneys
to only be entitled to appear in the High Court, the Supreme Court
I of Appeal and the Constitutional Court after a period ofithree years

2
from date of admission as a legal practitioner, declared
unconstitutional and invalid. Declaration of unconstitutionality
referred to the Constitutional Court in terms of section 172(2)(a) of
the Constitution.
ORDER
1. Section 25(3)(a) of the Legal Practice Act 28 of 2014 is declared
inconsistent with the Constitution and therefore invalid.
2. The declaration of unconstitutionality is referred to the
Constitutional Court in terms of sections 167(5) and l 72(2)(b) of
the Constitution.
3. The first respondent is ordered to pay the applicants' costs.
JUDGMENT
The matter was heard in open court and the judgment was prepared and authored
by the judge whose name is reflected herein and was handed down electronically
by circulation to the parties ' legal representatives by email and by uploading it
to the electronic file of this matter on Caselines. The date of handing-down is
deemed to be 14 May 2026.

3
DAVIS,J
Introduction
[ 1] The first applicant is an attorney of this Court. She was admitted as a legal
practitioner by this Court on 10 June 2025. In terms of section 25(3)(a) of the
Legal Practice Act1 (the LPA), she is precluded from appearing in the High Court,
the Supreme Court of Appeal and the Constitutional Court for a period of three
years. Advocates who may have been admitted as legal practitioners on the same
day, are not so precluded.
[2] The first applicant contends that the distinction between attorneys and
advocates in the above fashion is discriminatory and infringes on her rights as a
legal practitioner. She therefore sought an order declaring the relevant section
unconstitutional.
Role-players
[3] The first applicant is as described above. The second applicant is the law
firm where the first applicant practices.
[ 4] The applicants cited the Minister of Justice and Constitutional
Development (the Minister) as the first respondent and the Legal Practice Council
(the LPC), as the second respondent.
(5] The Black Lawyers Association (the BLA) was cited as the third
respondent.
l 28 Of 2014.

4
[6] The prescribed notices in terms of Rule 16A were delivered and also
published on a designated site of the South African Legal Information Institute
(Saflii).
The legislative framework
[7] Prior to the advent of the LP A, the two branches of the profession, being
attorneys and advocates, were regulated by two different Acts. These were
respectively the Attorneys Act2 and the Admission of Advocates Act3•
[8] For purposes of this judgment, I do not deem it necessary to refer to the
history of the two professions, as they existed prior to the introduction of the
uniform concept of a "legal practitioner". That has already been done in other
judgments 4. The LPA now governs the admission of all legal practitioners , with
the LPC maintaining separate rolls for those legal practitioners who wish to
practice as attorneys and those who wish to practice as advocates. The distinction
between referral advocates and advocates practising with bust accounts is not
relevant for the pw·pose of this judgment and has received judicial attention
elsewhere5.
[9] What is however, necessary to state, is that historically, attorneys did not
have the right of appearance in the Superior Courts of the 1and6. Such right of
appearance was reserved for advocates. This differentiation between the two
branches of the profession, was slightly ameliorated by the Right of Appearance
in Courts Act7 (the Rights Act).
2 53 of 1979.
3 74 of 1964.
4 See SALPC v Alves 2021 (4) SA 158 (SCA).
5 Morgan v Minister of Justice and Constitutional Developme nt (1055106/ 2024) [2025 ] ZAGPPHC 1202(11
November 2025).
6 As later defined in the Superior Courts Act 10 of 2013.
7 62 of 1995.

5
[1 0] In terms of the Rights Act, an attorney who wished to acquire the right to
appear in the High Court (then called the Supreme Court) and the Supreme Court
of Appeal (the Appellate Division, as it was previously known) may have applied
to the registrar of a provincial division, who may then issue a certifi
1
cate to the
effect that such an attorney has the right of appearance in the Supreme Court.
[11] The requirements for the issuance of such a certificate was that the attorney
would have to prove that he or she had an LLB degree ( or its equivalent); that
there were no proceedings pending against the attorney for his striking or
suspension from the roll of attorneys and that the attorney has been practising as
an attorney for at least three years or has been performing community service at
a law clinic for the same period.
[12] In 2005, section 4(4) of the Rights Act was amended to make it clear that
an attorney who has been issued with a certificate as contemplated above " ...
shall be entitled to appear in any court throughout the Republic". A similar
nationwide right has all along been afforded to advocates but was again expressly
confinned in section 2 of the Rights Act.
[13] The above remained the position until the "new dispensation" was
introduced by the LP A, which provided for the admission of legal practitioners
in a single Act and for the governing of all legal practitioners by a single body,
the LPC.
The rights of appearance
[ I 4] Section 25 of the LP A prescribes the rights of appearance of legal
practitioners. The first requirement is that the right of appearance may only be
exercised by a practitioner who has not been struck off the roll or )Vho is not

6
subject to an order of court suspending him or her from practising 8. This basic
requirement is unsurprising and not in dispute in this application.
[ 15] The LPA further provides that although a legal practitioner may appear "on
behalf of any person in any court in the Republic"9, the rights of attorneys to
appear in the High Court, the Supreme Court of Appeal and the Constitutional
Court are limited by the requirement that such an attorney must first obtain a
certificate from the registrar of the division in which such an attorney was
admitted as a legal practitioner 1° . The rights of advocates are not lim~ted by such
a requirement.
[ 16] The LPC has been properly served and cited as a party. In terms of the
LP A 11, the LPC is the custodian of the legal profession and, accordingly, the
proper party representing all legal practitioners in relation to their rights and
obligations. The LPC has not opposed the relief sought.
[17] The requirement for obtaining a certificate as contemplated above, is that
such an attorney must "satisfy" the relevant registrar that the attorney has been
practising for " ... a continuous period of not less than three years" 12 and is in
possession of an LLB degree 13.
[ 18] An alternative requirement provides for attorneys who do not hold LLB
degrees. They can only acquire the right of appearance in question if they have
"... gained the appropriate relevant experience, as may be prescribed by the
Minister ... "
14
• The reference to atto1neys without LLB degreesP refers to
8
Section 25(1). This section also does away with previous requirements that an attorney needed to be
sep a rate ly admitte d in e ach diffe rent d iv ision of the Hig h Court to b e allowed to practice In each divisions area
of jurisdict ion.
9 Section 25(2).
10 Sections 25(3) and 25(4).
11 Sections 3(c) and (d).
12 Section 25(3)(a)(i) .
13 Section 25(3)(a)(ii) .
14 Section 25(3)(b) .

7
attmneys admitted as such prior to the coming into operation of the LP A, which
now requires an LLB degree as a minimum qualification for both attorneys and
advocates.
[19] Section 25(3)(a)(i) of the LPA contains a proviso for attorneys admitted
under the LP A and who wish to acquire the rights of appearance before the expiry
of the three-year period. The proviso reads as follows: " ... this period may be
reduced in accordance with rules made by the Council if the attorney has
undergone a trial advocacy programme approved by the Council as set out in the
Rules".
The applicants' contentions
[20] The applicants attack section 25(3)(a)(i) of the LPA on vanous
constitutional grounds.
[21] Firstly, the applicants contend that the impugned provision encroaches on
the rights of equality 15 of legal practitioners.
(22] The applicants secondly contend that the imposition of a limitation on the
rights of appearance of attorneys infringes on their rights to dignity 16.
[23] Thirdly, the applicants contend that the limitations imposed by the
impugned section irrationally infringe on the rights of attorneys to exercise their
chosen profession freely 17. Although a profession, such as that of an attorney,
may be regulated, the limitation imposed by such regulation would only pass
constitutional muster if it is rationally related to a legitimate government purpose.
15 Section 9(1) of the Constitution provides that " ... everyone is equal before the law and has the right ta equal
protection and benefit of the law and section 9(2) proclaims that "Equality includes the full and equal enjoyment
of all rights and freedoms".
16 Section 10 of the Constitution provides that "Everyone has inherent dignity and the right to have their dignity
respected and protected".
17 Section 22 of the Constitution provides that "Every citizen has the right to choose their trade, occupation or
profession freely. The practice of a trade, occupation or profession may be regulated by law."

8
They argue that, not only is the section under consideration not rational, but,
insofar as it limits the applicants' rights to exercise their chosen profession freely,
it does not satisfy the requirements which the Constitution provides for justifiable
limitation of rights 18.
The Minister's position
[24] The Minister 's primary contention is that the relief claimed is moot. The
basis for this contention is that legislative proposals are afoot that will render a
declaration of unconstitutionality obsolete.
[25] The legislative proposal to which the Chief Director: Legislative
Development and Implementation , who deposed to the affidavit on behalf of the
Minister, referred was the introduction of the Legal Matters Amendment Bill (the
Bill) , which had previously been tabled in Parliament on 12 March 2025.
[26] Clause 15 of that Bill provides for the amendment of section 25 of the LPA
by the deletion of sections 25(3) and 25( 4) and for the deletion of any limitation
contained in section 25( 1 ). The Bill also amends the provisions relating to the
rights of appearance of candidate attorneys and pupil advocates, but those
provisions are not relevant to this application.
[27] The long and shmt of it is that the Minister contends that the legislative
proposals contained in the Bill will remove all and any limitations on the rights
of attorneys to appear in the High Court, the Supreme Court of Appeal and the
Constitutional Court and that the present application is therefore unnecessary.
18 Section 36(1) of the Constitution provides that "the rights in the Bill of Rights may be limited only in terms of
law of general application, to the extent that the limitation is reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom ... ".

9
[28] As an aside, the Minister expressed the view that the organised members
of the advocates' profession should have been included.
[29] Lastly, the Minister contended that, should the Court uphold the
declaration of unconstitutionality sought by the applicants, such a declaration
should be suspended for a period of 24 months " ... for Parliament to review the
impugned provision".
Evaluation of the equality argument
[30] The test to determine whether persons' rights to be treated equally have
been infringed upon has been comprehensively set out in Harksen v Lane19
(Harksen). There, the Constitutional Court laid down a two-stage test to
determine this question.
[31] First, the court must determine whether the prov1s10n sought to be
impugned differentiates between people or categories of people and, if so,
whether this differentiation serves a legitimate government purpose. If the
provision fails the test, it violates the guarantee of equality before the law.20
(32] If the provision passes the test, the court must still enquire, secondly,
whether the differentiation amounts to discrimination and whether such
discrimination is unfair21.
[33] Is there differentiation? The answer must be in the affirmative. As far as
the rights of appearance of legal practitioners admitted in terms of the LPA are
concerned, section 25 differentiates between advocates and attorneys.
Advocates, upon admission as legal practitioners. automatical]y have rights of
19 1998 (1) SA 300 (CC) par 43.
20 Ibid par 42.
21
Ibid par 44. See also Jordaon & Others v Minister of Home Affairs 2025 (6) SA 323 (CC) at par 31.

10
appearance in the High Court and higher appellate courts. Attorneys, however,
must wait three years before they acquire such rights.
[34] As already mentioned, the distinction between attorneys with LLB degrees
and those without is less significant, since the LP A now requires an LLB as the
minimum qualification for admission. As the number of attorneys who have been
admitted as such prior to the commencement of the LP A decreases over time, so
will the extent of this differentiation. It is, however, also not the focus of this
application , and neither is the alternative requirement contained in section
25(3)(b) of the LPA, relating to "appropriate relevant experience".
[35] Once it has been detennined that there is a differentiation , the next question
is whether the differentiation serves a legitimate government purpose. If the
intention of the provision was to ensure that only practitioners with a certain level
of advocacy skills should appear in the High Court and the higher appeal courts,
that may conceivably be a legitimate objective. A high level of skill in advocacy
and drafting of pleadings in the Superior Courts beneficially increases the
assistance that the decision-makers in those courts receive from practitioners,
which in turn, should lead to improved representation of litigants and the proper
ventilation of issues. It is axiomatic that this would be in the interests of justice.
[36] The manner in which section 25(3) has been formulated is, however,
destructive of such a notion. The acquisition of skills by way of a trial advocacy
programme is not prescribed as a requirement for being granted rights of
appearance ; it is merely offered as a route to a possible reduction in the three­
year period.
[37] The possible government objective of increased advocacy skills is further
undermined, and in my view, fundamentally so, by the arbitrary imposition of a
three-year waiting period. This period is prescribed as simply a function of the

11
passage of time. There are no experience requirements or skill enhancement
functions attached to it. In the words of one of the counsel for the applicants, an
admitted attorney needs only to "languish at home" for the prescribed period
before he or she suddenly, on year three plus one day of having been in practice,
may start appearing in the Constitutional Court.
[38] Similarly, if the differentiation between advocates and attorneys were to be
based on the difference in the nature of their practical vocational training
(pupillage for advocates and candidate attomeyship for attorneys), this
differentiation is not reflected in the three-year requirement. Without any
requirement for the acquisition by attorneys dw·ing the three-year period of such
advocacy skills which advocates may acquire during pupillage , the imposition of
the period is arbitrary. The proviso which provides for the reduction of this
period, does not otherwise detract from this arbitrariness.
[39] When considered as above, there can be no legitimate governmental
purpose that justifies one branch of the legal profession waiting for three years
before being granted the rights of appearance in question, while the other branch
of the profession has no waiting time imposed on it.
[ 40] It is significant that, insofar as the terms of the proposed legislative
amendments contained in the Bill may reflect any "legitimate government
purpose", the intention is to do away with all limitations on attorneys' rights of
appearance and not to impose any advocacy skills requirements.
[ 41] Section 25(3 )( a) of the LP A, therefore, fails the first test referred to above,
which means that it violates section 9(1) of the Constitution. It is therefore
unnecessary to consider the second test. As currently formulated, the short answer
to the question of whether section 25(3)(a) of the LPA impermissibly violates the

12
equality rights of attorneys admitted as legal practitioners, must therefore be in
the affirmative.
The right to dignity
[ 42] Section 10 of the Constitution states that everyone has inherent dignity and
guarantees that such dignity must be respected and protected.
[43] In Affordable Medicines Trust v Minister of Health and Others22 the link
between the practice of a profession and one's dignity has been emphasised thus:
" ... one 's work is part of one's identity and is constituhve of one's dignity. Every
individual has the right to take up any activity which he or she believes himself
or herself prepared to undertake as a profession and to make that activity the
very basis of his or her life. And there is a relationship between work and the
human personality as a whole ... though economic necessity or cultural barriers
may unfortunately limit the capacity of individuals to exercise such choice, legal
impediments are not to be countenanced unless clearly justified in terms of the
broad public interest. "23
[ 44] The applicants contend that the limitation imposed on the right of attorneys
to appear adversely affects their dignity.
[ 45] Except for the proviso already referred to above (by which an attorney can
reduce the three-year period), the effect of section 25(3)(a) is that atto1neys are
rated as less worthy than advocates as far as rights of appearance go, at least for
a period of three years. This clearly impacts the dignity of attorneys.
[ 46] The wording of the section does not indicate. nor did the Minister contend .
that this limitation is so that attorneys can, during the three-year period, gain any
22 2006 (3) SA 247(CC).
23 Ibid at paras 59 and 60.

13
experience or skills which would result in them being equally qualified, compared
to advocates or attorneys with say, four years' seniority, to appear in the High
Court or the appellate courts mentioned . It is not difficult to appreciate why
recently admitted attorneys feel that they suffer an indignity to be told by the
impugned section that they should wait for three years before they are allowed to
proverbially talk where the adults talk.
[47] I therefore find that section 25(3)(a) of the LPA encroaches on the
Constitutional rights to the dignity of persons in the same position as the first
applicant.
Right to freedom of trade, occupation and profession
[ 48] The first applicant makes the point that she is a qualified, admitted legal
practitioner , practising as an attorney. This is her chosen occupation and
profession . For three years, she has, however , not been allowed to represent, by
way of appearance , clients in the High Court and the other comts mentioned. Her
freedom to practise her chosen profession is therefore limited for this period by
section 25(3)(a).
[ 49] Section 22 of the Constitution, which guarantees the right of citizens to
choose a trade, occupation or profession, itself determines that such practice may
be regulated by law.
[50] Once such a regulation limits the right itself however, there must be a
rational connection between the limiting legislation and the achievement of a
legitimate government purpose24. As already indicated above during the analysis
of the equality ch aJlen ge to the impugned sect ion , the three-year period, without
an accompanying provision imposing the attainment of any qualification or
advocacy skills, is simply arbitrary. It brooks no argument that arbitrary
24 Ibid at par 74

14
provisions can never satisfy the test of constituting a legitimate government
purpose.
[51] While it is trite that any constitutionally guaranteed right may be limited
by a law of general application, such limitation must be reasonable and justifiable
in an open and democratic society based on human dignity, equality and
freedom25.
[52] In an instance such as this, the burden of justifying the limitation (as
opposed to an onus in the ordinary sense) rests on the Minister26. The Minister
has elected not to advance any justification. Instead, the Minister's deponent
stated the following: "The impugned provision can also be said to infringe the
fundamental right to freedom of trade, occupation and profession, that is, the
right to activities by means of which a livelihood is pursued". As will be seen
later, when the Bill is discussed, the deponent also refers to the present statutory
provisions as an "unsatisfactory state of affairs".
[53] The result of the above is that the applicants' attack on section 25(3)(a) of
the LP A, based on the unjustifiable limitation of attorneys' rights in terms of
section 22 of the Constitution, must also succeed.
The mootness argument
[54] The Minister's deponent stated that it was, in his words, "of crucial
importance" to point out that the Bill has been introduced to the National
Assembly in order to seek to remedy the "unsatisfactory state of affairs brought
about by the impugned provision" . It has already been the subject of consideration
25 Section 36(1) of the Constitution.
26
See, for example, Minister of Home Affairs v National Institute for Crime Prevention and the Re-integration of
Offenders (NICRO) 2005 (3) SA 280{CC) at para 34.

15
by Parliament and will seek to address "the mischief which is the basis of this
application".
[55] Based on this, the deponent, who was quick to point out that the Minister
did not oppose the application, contended that the application was moot and a
waste of judicial resources.
[56] The "explanatory affidavit" delivered on behalf of the Minister was
deposed to on 31 January 2026. The most recent activity mentioned in that
affidavit, indicating the Bill's progress on the way to possible promulgation, was
that the Bill was tabled in Parliament on 12 March 2025 and published for
comment by the public on 13 June 2025. The affidavit is silent on the Bill's
progress through the enactment process since then, and counsel for the Minister
could not, from the bar, enlighten me further as to any such progress.
[57] The Bill not only deals with amendments to the LPA but also seeks to
amend the Judicial Service Commission Act27, the Promotion of Access to
Information Act28, the Prevention and Combating of Corrupt Activities Act29, the
Child Justice Act30 and the Cybercrimes Act31. It is abundantly clear from a
reading of the Bill (a copy of which has been annexed to the explanatory affidavit)
that a plethora of wide-ranging and highly technical amendments to existing
legislation are contemplated thereby. No information has been furnished to the
Court as to the progress with or extent of finality of the legislative processes
relating to these proposed amendments. It is not unheard of for legislation to take
seemingly interminable periods of time before promulgation (take the proposed
27 9 of 1994.
28 2 of 2000.
29 12 of 2004.
30 75 of 2008.
31 19 of 2020.

16
Mediation Bill32, for example, which has now been in the making for more than
a decade).
[58] Until such time as section 25(3)(a) of the LPA has been repealed by
Parliament , the relief sought by the applicants cannot be moot, and neither is there
any reason for a determination of the impugned sub-section's constitutionality to
await an undeterminable period of time for an uncertain event to take place. This
is also based on the Minister's assumption that the legislative amendments will
indeed be granted without amendment itself.
[59] The mootness point, although only raised as an "explanation" and not as
an opposition, must therefore fail. The issue of whether there should be any
suspension of a declaration of invalidity, should be a matter for the Constitutional
Court to determine, in the event that such a declaration be confirmed.
[60] Another point which the Minister "raised", but not relied on in opposition
to the application, was that "the Bar Council" (presumably being a reference to
the General Council of the Bar, and excluding other associations of advocates
such as the Pan African Bar Association and the South African Bar Association)
and the Law Society of South Africa had not been cited as parties to the
application.
[61] The applicants' counter was that the voluntary associations of legal
practitioners may conceivab ly have views on the relief sought, but the granting
of it will not have a direct or prejudicial impact on their rights, which would
otherwise remain intact. Moreover, a formal Rule 16A notice has been published
on the Saflii website for more than six months prior to the hearing of the
application, without any response.
32 Project 94 of the Law Reform Commission.

17
[62] In these circumstances, I find that there was no misjoinder fatal to the
application.
[63] As mentioned before, the Black Lawyers Association (the BLA) was cited
as a respondent, but neither the papers nor counsel for the applicants could
satisfactorily explain why this was done. The BLA has not participated in the
matter, and no relief was sought against it. Nothing, therefore, turns on this
unnecessary citation.
Costs
[64] Although the matter served before me as a special motion, it remained in
essence an unopposed application. The fact that the Minister had filed an
explanatory affidavit did not convert the matter to an opposed motion. This much
is also clear from the Minister's formal notice to abide. The point was also made
that the Minister had an obligation to place her views before the Court33.
[65] However, in the exercise of the Court's discretion, and following on the
principle that private parties should not pay the costs if they are successful in
protecting constitutional rights34, I find that the Minister should pay the costs of
the application.
Order
[66] In the premises, it is ordered as follows:
1. Section 25(3)(a) of the Legal Practice Act 28 of 2014 1s declared
inconsistent with the Constitution and therefore invalid.
33
See: Van der Merwe v Road Accident Fund 200 6 (4) SA 230 (CC).
34
See: NL v Estate Late Frankel 2018(2)SACR 283(CC) and Moh laba v Min ister of Cooperative Governan ce
2025(4)BCLR 442(CC).

18
2. The declaration of unconstitutiona lity is referred to the Constitutional
Court in terms of sections 167(5) and 172(2)(b) of the Constitution.
3. The first respondent is ordered to pay the applicants' costs.
Date of Hearing: 22 February 2026
Judgment delivered: 14 May 2026
APPEARANCES:
For the First Applicant:
Attorney for the First Applicant:
For the Second Applicant:
Attorney for the Plaintiff:
For the First Respondent:
Atto rney for the First Respondent:
NDAVIS
Judge of the High Court
Gauteng Division, Pretoria
Mr M Marweshe
Marweshe Attorneys, Pretoria
Adv G S Mapuma
Marweshe Attorneys, Pretoria
Adv R A Ramuhala
The State Attorney, Pretoria
No appearance for Second and Third Respondents