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[2002] ZACC 17
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Van der Spuy v General Council of the Bar of South Africa (CCT48/01) [2002] ZACC 17; 2002 (5) SA 392; 2002 (10) BCLR 1092 (18 July 2002)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT
48/01
ADRIAAN SECUNDUS VAN DER
SPUY Applicant
versus
THE GENERAL COUNCIL OF THE
BAR OF SOUTH
AFRICA Respondent
THE MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT First Intervening Party
ADVOCATES FOR TRANSFORMATION Second
Intervening Party
THE LAW SOCIETY OF SOUTH AFRICA Third Intervening
Party
Heard on : 16 May 2002
Decided on : 18 July
2002
JUDGMENT
LANGA DCJ:
Background
[1] The
applicant is an advocate of the High Court of South Africa and a member of the
Independent Advocates Association of South
Africa (IAASA). On 2 April 1998, the
High Court in Pretoria found the applicant guilty of unprofessional conduct and
suspended him
from practice for a period of six months. The judgment, which is
reported as
General Council of the Bar v Van der
Spuy
,
[1]
was delivered pursuant to
a complaint brought by the respondent, the General Council of the Bar of South
Africa (GCB), that the applicant
had breached the “referral rule”.
The rule prohibits advocates from taking instructions and fees for their work
directly
from members of the public and requires advocates to be briefed by an
attorney.
[2] An application for leave to appeal to the Supreme Court of
Appeal (SCA) was refused by the High Court. On 19 September 2001
the SCA
dismissed the applicant’s petition for special leave to appeal to it. No
further steps were taken by the applicant
in relation to the case; in
particular, the applicant did not make an application to appeal to this
Court.
[3] The present matter is an application for direct access to
this Court under rule 17 of the Constitutional Court
Rules.
[2]
In papers filed with this
Court, the applicant seeks a declaration to the effect that the referral rule of
the GCB is inconsistent
with the Constitution in that it violates sections
22,
[3]
34
[4]
and
35(2)(b)
[5]
of the
Constitution.
[4] Following directions issued by the Chief Justice, the
application was brought to the attention of various parties with an interest
in
the outcome of the case and they were invited to intervene if they so wished.
The application, which has understandably evoked
considerable interest among
legal practitioners, is opposed by the GCB on the grounds that the applicant has
failed (a) to show why
direct access should be granted and (b) to present a
plausible case on the merits. Submissions were also made by the Minister of
Justice and Constitutional Development (the Minister), Advocates for
Transformation and the Law Society of South Africa, all of whom
intervened in
the proceedings.
IAASA, the Commercial Lawyers Association of South
Africa and Advocate Rajkumar also signified in writing their interest in the
matter,
while the South African Criminal Bar Association abided the decision of
this Court.
[5] When the matter was argued in this Court, it was stated
on behalf of the applicant that although the written application challenged
the
constitutionality of the referral rule of the respondent, the real challenge was
to the referral rule of the common law. Oral
submissions on behalf of the
applicant proceeded on that basis.
Direct Access
[6] Rule 17
gives effect to section 167(6) of the Constitution which permits direct access
where this is “in the interests
of justice and with leave of the
Constitutional Court”. The rule requires an applicant to allege the facts
upon which relief
is sought and also to indicate why it is in the interests of
justice that direct access be granted. A determination of what is in
the
interests of justice in any particular case involves the weighing up and
balancing of a variety of factors which include -
“. . . the importance of the constitutional issues, the saving in time and
costs that might result . . ., the urgency, if any,
in having a final
determination of the matters in issue . . ., and on the other hand, the
disadvantages to the management of the
Court’s roll and to the ultimate
decision of the case if the [high court and the] SCA [are]
bypassed.”
[6]
[7] Direct
access is an extraordinary procedure, generally only granted in exceptional
circumstances.
[7]
In
Bruce and
Another v Fleecytex Johannesburg CC and Others
some of the considerations
relevant to direct access were articulated by this Court as follows:
“This Court is the highest court on all constitutional matters. If, as a
matter of course, constitutional matters could be
brought directly to it, we
could be called upon to deal with disputed facts on which evidence might be
necessary, to decide constitutional
issues which are not decisive of the
litigation and which might prove to be purely academic, and to hear cases
without the benefit
of the views of other courts having constitutional
jurisdiction. These factors have been referred to in decisions given by this
Court on applications for direct access under the interim Constitution, and are
clearly relevant to the granting of direct access
under the 1996
Constitution.”
[8]
[8] The
issue before the High Court in the
Van der Spuy
matter was the
constitutionality of the referral rule. After the SCA refused to entertain the
applicant’s appeal, it was open
to him to lodge an application for leave
to appeal to this Court under Rule
20
[9]
on this constitutional issue.
He did not do so and no explanation has been given for this
failure.
[9] This constitutional issue has been canvassed in a number of
cases, including
De Freitas and Another v Society of Advocates of Natal and
Another
,
1
[0]
in which the
applicant appeared as counsel for the appellant and IAASA was a co-appellant.
Although the SCA upheld the High Court’s
judgment on appeal in the
De
Freitas
matter, no further appeal was made to this Court. The GCB has, with
good reason, suggested that the current application is an attempt
at a disguised
appeal against the decision in
De Freitas
. Whatever the motivation, the
effect of acceding to this application would be to avoid the consequences of the
applicant’s
unexplained failure to pursue his case to its logical end
after the SCA’s refusal to entertain the appeal against the
Van der
Spuy
judgment of the Pretoria High Court.
[10] If the constitutional
issues in
Van der Spuy
and
De Freitas
had come before this Court
in the form of an appeal, this Court would have been in a position to evaluate
the evidence put before
the high courts and the SCA. However it is now being
requested to consider the matter as a matter of first instance without the
benefit of a record.
[11] Furthermore there are new issues that have
been raised in the submissions before the Court which were not raised nor dealt
with
in
Van der Spuy
or
De Freitas
. These issues involve disputes
of fact which are relevant to a proper adjudication of the question and to any
determination on the
merits.
[12] In his affidavit, the Minister avers
that the referral rule has the effect of prejudicing the entry of young black
and female
persons into the advocates’ profession. In disputing this on
behalf of the GCB, its chairman states in his affidavit that
the
“difficulties faced by young practitioners, and the need for the Bar, in
particular, to remedy its imbalance as regards
race and gender, are complex
issues” and that the GCB would have to present facts relevant to this
issue if the Court were
to proceed to determine it. In an affidavit filed on
behalf of the Advocates for Transformation (Western Cape) its chairman states
that–
“. . . it is readily conceded that black and female entrants to the
advocates’ profession, face a range of difficulties
in establishing their
practices, not faced by their white male counterparts. Whilst the cause of such
difficulties can properly
be ascribed in some measure to the
application
of the referral rule, I think it can safely be said, that the rule itself
does not impede entry and that the abolition of the referral
rule will not
eliminate or attenuate the said problems. To put it differently, it is somewhat
of a myth to think that if the referral
rule is abolished, then the floodgates
of work will open up for struggling black and female
advocates.”
[13] These contentions were relied upon in
submissions to this Court. It was also contended that the referral rule
unreasonably
increases the costs of litigation. The relevant facts in regard to
both issues are disputed. As a general rule, such disputes should
be dealt with
in the light of evidence properly tendered to a high court, and not by this
Court as a court of first instance on the
basis of assertions made in support of
an application for direct access.
[14] High courts have jurisdiction to
determine constitutional matters
1
[1]
and are the appropriate forums in which such litigation should be initiated. If
the decision of a high court is to be challenged,
and there are no circumstances
justifying a direct appeal to this Court, the ordinary route is to appeal to a
full bench of a high
court or to the SCA. Only thereafter, if necessary, would
resort to this Court be appropriate. The reasons for this were explained
by
this Court in
De Freitas
when, after pointing out that a decision in that
matter involved the development of the common law, special leave to appeal
directly
to this Court was refused. The Court reasoned that:
“The regulation of the legal profession and deciding on the fitness of
members of that profession to practise is a matter in
respect of which all the
divisions of the Supreme Court, which have now become the SCA and the High
Courts, have always exercised
their inherent jurisdiction under the common law.
It is a matter pre-eminently for the SCA to determine, and it would not
ordinarily
be appropriate for this Court to deal with such an issue as a
constitutional matter without knowing the views of the SCA on the issues
that
have been raised.”
1
[2]
(footnote omitted).
[15] The applicant also contends that
the referral rule breaches the provisions of the
Competition Act 89 of 1998
.
This issue is the subject of litigation involving the Competition Commission and
the GCB and is pending before the SCA.
[16] The GCB states that a
considerable body of evidence dealing with the referral rule is contained in the
record in the pending
appeal on the competition issue. That evidence would also
be relevant to the issues raised by the applicant in the present case.
In
addition, the GCB indicates it would want to place evidence before the court
dealing with other issues raised by the applicant
and the
Minister.
[17] The referral issue is a matter of considerable importance
to both the legal profession and the general public. This much was
made clear
in all the submissions made to the Court. The debate has been raging for some
years about the place, if any, the referral
rule ought to occupy in present day
legal practice in South Africa, its relevance to access to justice, the extent
to which it should
be enforced and who should enforce or police it. However, it
is also clear from the submissions before us that the debate is an
aspect of a
broader debate about the transformation of the legal profession generally and
its place in the constitutional order.
[18] Although there is general
acknowledgment of the necessity to find an acceptable solution to the
difficulties facing the legal
profession, there is no unanimity with regard to
the nature of the problem and its solution. What is clear is that both the
narrow
and the broader issues are currently being canvassed and debated in a
number of forums, more particularly within and amongst all
the branches of the
legal profession. The Legal Practice Bill, which is being promoted by the
Minister, is currently under consideration
and it is envisaged that the process
will culminate in legislation which will deal, amongst other things, with issues
such as the
referral rule and the transformation of the legal profession
generally.
[19] While such considerations might not be sufficient to
refuse direct access where a litigant complains of a grave or flagrant
violation
of his or her rights, they nevertheless remain relevant to determining the
interests of justice. These considerations,
taken together with the
undesirability of this Court considering matters that give rise to factual
disputes as a court of first and
final instance, are sufficient to indicate that
it would not be in the interests of justice for this Court to grant direct
access
in this case.
[20] In the circumstances, the application must
accordingly fail.
Order
[21] The following order is made:
1. The application for direct access is dismissed.
2. There is no order made for costs.
Chaskalson
CJ, Ackermann J, Du Plessis AJ, Goldstone J, Kriegler J, Madala J, Ngcobo J,
O’Regan J, Sachs J and Skweyiya AJ concur
in the judgment of Langa
DCJ.
For the Applicant: Advocate M. Klein and Attorney J. Nascimento
instructed by the Jose Nascimento Attorneys, Johannesburg
For the Respondent:
Advocate M. Seligson SC, Advocate H. K. Salduker
and Advocate A. Cockrell
instructed by Deneys Reitz Attorneys,
Johannesburg
For the 1
st
Intervenor: Attorney G. M. Budlender instructed by
the State Attorney, Johannesburg
For the 2
nd
Intervenor: Advocate N. Arendse SC, Advocate A.
Schippers, Advocate N. Bawa and Advocate R. Paschke instructed by Hofmeyr
Herbstein
& Gihwala Inc.
[1]
1999 (1) SA 577
(T).
[2]
Rule 17(1)
and (2) provide
that:
“(1) An application for direct access as contemplated in section 167(6)(a)
of the Constitution shall be brought on notice of
motion which shall be
supported by an affidavit which shall set forth the facts upon which the
applicant relies for relief.
(2) An application in terms of subrule (1) shall be lodged with the registrar
and served on all parties with a direct or substantial
interest in the relief
claimed and shall set
out–
(a) the grounds on which it
is contended that it is in the interests of justice that an order for direct
access be granted;
(b) the nature of the relief sought and the grounds upon which such relief is
based;
(c) whether the matter can be dealt with by the Court without the hearing of
oral evidence and, if it cannot,
(d) how such evidence should be adduced and conflicts of facts
resolved.”
[3]
Section 22 of
the Constitution states:
“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.”
[4]
Section
34 of the Constitution states:
“Everyone has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing
before a court or, where
appropriate, another independent and impartial tribunal or
forum.”
[5]
Section
35(2)(b) of the Constitution states:
“Everyone who is detained, including every sentenced prisoner, has the
right –
to choose, and to consult with, a legal practitioner, and to be informed of this
right
promptly”.
[6]
See
MEC for Development Planning and Local Government, Gauteng v Democratic Party
and Others
1998(7) BCLR 855 (CC);
1998 (4) SA 1157
(CC) at para 32.
Although the case dealt with an application for a direct appeal under rule 18,
the principles referred to are also
relevant to an application for direct access
under rule 17. See also
Executive Council, Western Cape v Minister for
Provincial Affairs and Constitutional Development and Another; Executive
Council, KwaZulu-Natal
v President of the Republic of South Africa and Others
[1999] ZACC 13
;
1999 (12) BCLR 1360
(CC);
2000 (1) SA 661
(CC) para 10.
[7]
S v Zuma and Others
[1995] ZACC 1
;
1995
(4) BCLR 401
(CC);
1995 (2) SA 642
(CC) para 11;
Besserglik v Minister of
Trade, Industry and Tourism and Others (Minister of Justice intervening)
[1996] ZACC 8
;
1996 (6) BCLR 745
(CC);
1996 (4) SA 331
(CC) para 6;
Transvaal
Agricultural Union v Minister of Land Affairs and Another
[1996] ZACC 22
;
1996 (12) BCLR
1573
(CC);
1997 (2) SA 621
(CC) para 16;
Hekpoort Environmental Preservation
Society and Another v The Minister of Land Affairs and Others
[1997] ZACC 13
;
1997 (11) BCLR
1537
(CC);
1998 (1) SA 349
(CC)
para 6;
Christian Education South
Africa v The Minister of Education
1998 (12) BCLR 1449
(CC);
1999 (2) SA 83
(CC) para 4;
Bruce and Another v Fleecytex Johannesburg CC and
Others
[1998] ZACC 3
;
1998 (4) BCLR 415
(CC);
1998 (2) SA 1143
(CC) para 4.
[8]
Bruce and Another v
Fleecytex
id para 7(footnote
omitted).
[9]
Rule 20(2) and (3)(a)
of the Rules of the Constitutional Court state:
“(2) A litigant who is aggrieved by the decision of the Supreme Court of
Appeal on a constitutional matter and who wishes to
appeal against it to the
Court shall, within 15 days of the judgment against which the appeal is sought
to be brought and after giving
notice to the other party or parties concerned,
lodge with the registrar of the Court an application for leave to appeal.
(3)(a) The application referred to in subrule (2) shall be in writing, signed by
the appellant, and shall set out the constitutional
matter raised in the case,
the decision against which the appeal is made and the grounds on which such
decision is
disputed.”
1
[0]
2001
(6) BCLR 531
(SCA);
2001 (3) SA 750
(SCA).
[1]
1
Section 169 of the
Constitution.
1
[2]
De Freitas and Another v
Society of Advocates of Natal (Natal Law Society intervening)
1998 (11) BCLR
1345
(CC) para 23.