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[2015] ZAWCHC 2
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Noordien v Cape Bar Council and Others (9864/2013) [2015] ZAWCHC 2 (13 January 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case no:
9864/2013
DATE: 13 JANUARY
2015
In
the matter between:
ABUBAKER
NOORDIEN
..................................................................
Applicant
And
THE
CAPE BAR
COUNCIL
...................................................
First
Respondent
GENERAL
COUNCIL OF THE BAR
................................
Second
Respondent
CAPE
LAW
SOCIETY
...........................................................
Third
Respondent
LAW
SOCIETY OF SOUTH AFRICA
...............................
Fourth
Respondent
MINISTER
OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
...............................
Fifth
Respondent
INDEPENDENT
ASSOCIATION OF
ADVOCATES
OF SOUTH AFRICE
.....................................
Sixth
Respondent
JUDGMENT:
13 JANUARY 2015
Schippers
J:
[1]
The
applicant is a former independent advocate. He was struck from the
roll of advocates by this court on 30 August 2013. The court
found
that he is not a fit and proper person to practise as an advocate
because he lacks the necessary qualities of honesty and
integrity;
that he had admitted that he was guilty of serious misconduct, more
specifically, dishonesty, perjury and lying to a
magistrate; and that
he had deliberately taken steps to circumvent the referral rule,
which is an offence under
s 9(2)
of the
Admission of Advocates Act 74
of 1964
(“
the
Admission of Advocates Act
&rdquo
;).
[1]
[2]
In the amended notice of motion (which is extremely confusing) the
applicant, who appears in person, seeks some 27 declaratory
orders,
which include orders declaring that all legal practitioners are equal
before the law; that direct and indirect discrimination
is
prohibited; that the principle of legality, the interests of justice
and the rule of law apply in this case; that the Constitution
is the
supreme law; that all public power is subject to the rule of law; and
that the Constitutional Court “
is charged with determining
the boundaries when interpreting an Act of Parliament.
”
[3]
In essence however, the applicant seeks an order in the following
terms: (1) declaring that “
the court process in striking off
applications is unconstitutional
”; (2) declaring that the
referral rule is unconstitutional on the grounds that it is
overbroad, discriminatory and uncompetitive;
(3) declaring that ss
83(1) and 83(8) of the Attorneys Act 53 of 1979 (“
the
Attorneys Act
”) are unconstitutional on the basis that
these provisions are unfairly discriminatory, and infringe the rights
to dignity,
freedom of trade, occupation and profession, and access
to court.
Is
the
court process
in striking off applications
unconstitutional?
[4]
It is
a settled principle that a constitutional issue must be properly
pleaded. A party must place before the court information
relevant to the determination of the constitutionality of impugned
provisions in a statute.
[2]
This is not new. The courts have repeatedly stated that
pleadings must be lucid, logical and intelligible; and a litigant
must plead his cause of action or defence with at least such clarity
and precision to enable his opponent to determine the case
he is
called upon to meet.
[3]
[5]
The founding affidavit (comprising 174 pages without annexes) says
nothing about the respects in which the process in striking
off
applications is unconstitutional. The provisions of the
Constitution which that process allegedly violates are not
identified.
The respondents have to guess what features of the
striking off process are allegedly unconstitutional and then
speculate about
which provisions of the Constitution might be
implicated. In addition, if the process followed in striking
off applications
limits any right under the Constitution, such
limitation may be justifiable under s 36. The respondents would
then be entitled
to place facts before the court to show that the
limitation is justified. However, they cannot do so because the
applicant has
laid no foundation in his papers for the challenge that
the striking off process is unconstitutional.
[6]
In short, there is no basis, factual or otherwise, for this
challenge.
[7]
It is clear from the applicant’s papers that his real complaint
is that he should not have been struck from the roll of
advocates. In
the founding affidavit he says,
“
I
am placed in the above position by two unappreciative people who feel
it to be justified (
sic
) to take a person’s career away
from him because they do not want to pay at all costs for service
rendered to them for a
fraction of the price.”
[8]
The applicant has thus not made out a case to challenge the
constitutionality of the process followed in a striking off
application
and the relief claimed on this ground must fail.
[9]
Aside from this, it is clear both from the papers in this case, and
the judgment in the striking off application, that the applicant’s
right to just administrative action under s 33 of the Constitution
and the provisions of the
Promotion of Administrative Justice Act 3
of 2000
, as well as his right of access to court under s 34 of the
Constitution, were not threatened at all, let alone infringed.
The
attack on the referral rule
[10]
The
Appellate Division and subsequently the Supreme Court of Appeal (SCA)
have held that the referral rule - that advocates may
not take
instructions directly from lay clients and can do so only with the
intervention of an attorney - is fundamental to the
advocates’
profession.
[4]
[11]
The applicant admits that he accepted R1500 directly from a member of
the public to reinstate her son’s bail, without
a brief from an
attorney. In the founding affidavit he challenges members of
the bar to render this service in the regional
court for R1500 and
says that it is worth at least R10 000. Despite his
acknowledgment that the sum of R1500 was a fee,
he states,
“
I
can never accept that the above R1500 can be seen as fees but rather,
[an] affordable donation for the good deed that was agreed
to by
myself.”
[12]
The
applicant says that the member of the Cape Bar who investigated the
complaint against him, “
had
his own agenda
”
and that he “
orchestrated
and concocted
”
the allegations in the complainant’s affidavit, to justify the
applicant’s removal from the roll of advocates.
Then it
is said that the first respondent, “
is
using and abusing the referral rule to get rid of its competition and
not really to help the public.
”
With reference to
De
Freitas
,
[5]
the applicant submits that the rule is overbroad because there are
less invasive means to protect public money. He contends
that
the referral rule is not in the public interest because it deprives
the underprivileged and previously disadvantaged citizens
of direct
access to the services of an advocate.
[13]
In
De
Freitas
,
the SCA reiterated that the bar in this country is a referral
profession (subject to certain exceptions which are not relevant
for
present purposes) which does not generally permit advocates to accept
instructions directly from clients. The referral
practice
serves the best interests of the professions of advocates and
attorneys, and the public, in both litigious and non-litigious
matters. The absence of direct and possibly long-standing links
between an advocate and his or her client preserves the advocate’s
independence. Advocates are not required to keep trust banking
accounts and a client who instructs an advocate directly has
no
protection against attachment by creditors and cannot recover a
shortfall in a trust account from the Fidelity Fund.
[6]
The referral rule was not inconsistent with the right of an accused
to engage a legal practitioner of his or her choice, or the
right to
freely engage in economic activity, under the Interim
Constitution.
[7]
[14]
In a
further majority judgment, Cameron JA said that the basis of a claim
that the referral rule should be upheld in the public
interest should
be subjected to exacting scrutiny, particularly because it is not
sourced in a statute. The mere fact that there
is a divided bar in
this country does not logically or necessarily entail the referral
rule.
[8]
However, subject to
judicial supervision, it is in the public interest that there should
be a vigorous and independent bar which
is self-regulated, whose
members are in principle available to all and who generally do not
perform administrative and preparatory
work in litigation but
concentrate their skills on the craft of forensic practice.
[9]
Cameron JA went on to say that the disregard of the referral rule
would lead to abuses in the future as regards trust accounts,
as
advocates are not required or permitted to keep trust banking
accounts for the receipt and retention of clients’ money.
If
they purport to do so, our law of trusts precludes the arrangement
from being effective to protect the public against appropriation
and
loss. For so long as the statutory absence of trust fund protection
continues, there is a compelling reason why the courts
should enforce
the referral rule.
[10]
[15]
It appears that the applicant’s answer to all of this is that
the courts have decided that the referral rule “
should fit
all
”. He submits that this approach can never be correct,
and says,
“
It
is my mission to prove that the High Court’s and the SCA’s
position
thus
far is incorrect. I will prove that the provisions of ss 83(1) and
83(8) of the Attorneys Act is (sic) unconstitutional…”
[16]
It will be noted that the overriding purpose of the referral rule is
to protect members of the public because advocates do
not hold trust
accounts. It does so effectively. It is not designed or implemented
in order to deny disadvantaged citizens access
to advocates or to
courts. Moreover, the referral rule applies regardless of whether the
advocate is a member of an established
bar or the independent bar.
[17]
There are no facts to support the applicant’s claim that the
first respondent has invoked the referral rule in order
to eliminate
competition, and “
not really to help the public.
”
On the contrary, in the applicant’s case the rule was applied
precisely to protect the public. The applicant informed
the court in
his striking off application that his
modus operandi
was this:
He took money directly from members of the public (who were obviously
unprotected because the applicant had no trust
banking account). He
then paid an attorney part of the money in order for the latter to
pretend that he was the instructing attorney.
In the case of both the
complainants the attorney had not even met any of them. The attorney
furnished an affidavit to the first
respondent confirming that he did
not instruct the applicant.
[18]
The
next question is whether the referral rule is overbroad. A challenge
to legislation (or a rule) on the basis that it is overbroad
is in
essence a challenge that a legitimate government purpose served by
the legislation could be achieved by less restrictive
means. To
determine whether a law (or rule) is overbroad, a court must consider
the means used in relation to its constitutionally
legitimate
underlying objectives. If the impact of the law is not proportionate
to such objectives, the law may be deemed overbroad.
[11]
[19]
In
De Freitas
the divided nature of the legal profession in
this country was recognised and the referral rule upheld, essentially
on the basis
that the practice of an advocate as a referral
profession is both justifiable and manifestly in the public interest.
I do not think
it can be said that the rule is not aimed specifically
at the protection of the public and preventing abuse - permissible
areas
of state control - but that it sweeps within its ambit other
constitutionally protected activities.
[20]
The impact of the referral rule is thus not disproportionate to its
constitutionally legitimate underlying objectives, and
the
applicant’s challenge on the ground that the rule is overbroad,
must fail.
[21]
What remains is whether the referral rule is unfairly discriminatory.
[22]
The applicant contends that the referral rule is unconstitutional
because it is, “
based on the unlisted analogous ground of
institutionalized or systemic or structural inequality based on class
or social status
and monopolistic hegemony.
” Then he says,
“
The
Geach case constitutes a locus classicus of the unequal and
discriminatory effect and extent which the referral rule has in
the
operation and application thereof, on members of the established
traditional bar as opposed to independent advocates that either
practise on their own or belong to some so-called rebel bar. In no
uncertain terms independent advocates are made to feel that
they are
not deserving of equal treatment and more particularly, ‘concern,
respect and consideration’ and most importantly,
that the law
is likely to be used against them more harshly than others who belong
to the established traditional bar.”
[23]
The
test for discrimination is settled law. The first stage of the
inquiry is whether the impugned provision differentiates between
people or categories of people and if so, whether it bears a rational
connection to a legitimate government purpose. The second
stage is
whether the differentiation amounts to unfair discrimination, which
involves a two-stage analysis: firstly, whether the
differentiation
amounts to discrimination (if it is on a listed ground discrimination
is established; if not, whether or not there
is discrimination
depends on whether the ground is based on characteristics which
potentially impair fundamental human dignity
or affect persons
adversely in a comparably serious manner); and secondly, whether the
differentiation amounts to unfair discrimination
(if it is on
unlisted ground, unfairness is presumed; if not, the complainant must
establish unfairness).
[12]
[24]
Although
the test was laid down in a case where the constitutional validity of
legislation was challenged, it applies where an attack
is directed at
conduct, or a policy or practice, with the necessary change.
[13]
[25]
The
applicant contends that the referral rule is discriminatory on an
unlisted ground.
[14]
Therefore
he must show that the referral rule differentiates between two
categories of people; that the differentiation is irrational;
that it
amounts to discrimination; and that the discrimination is unfair.
[26]
The applicant however has not established that the referral rule is
discriminatory. To begin with, although the rule differentiates
between advocates and attorneys, the differentiation bears a rational
connection to legitimate government purposes - the need to
regulate
the professions and protect the public.
[27]
The
regulation of a profession is a valid sphere of government activity
authorised by the Constitution itself. Section 22 provides
that the
practice of a trade, occupation or profession may be regulated by
law.
[15]
[28]
As already stated, the SCA in
De Freitas
held that the
referral rule is in the public interest for two reasons. First, there
should be an independent bar whose members
are in principle available
to all, and who are specialists in forensic skills and in giving
expert advice on legal matters.
Second, the referral rule is
necessary to protect the public against appropriation and loss of
money paid to advocates who are
not required or allowed to keep trust
banking accounts.
[29]
Neither
the referral rule nor its application results in institutionalised or
systemic inequality. It is not based on class
or social status.
It is not designed to, nor does it have the effect of, promoting a
monopoly on legal services. The applicant’s
contention that the
Geach
case
[16]
is an illustration of
the unequal and discriminatory effect of the referral rule, is wrong;
and demonstrates the true nature of
his complaint. The referral rule
was not in issue at all in
Geach
.
The applicant’s complaint is that having been struck from the
roll of advocates, he was treated more harshly than the advocates
in
Geach
.
[30]
The applicant has thus not made out a case that the referral rule is
an infringement of the equality clause contained in s
9 of the
Constitution.
The
attack on s 83 of the Attorneys Act
[31]
Section
83(1) of the Attorneys Act provides that no person other than a
practitioner (defined as an attorney, notary or conveyancer)
shall
practise or hold himself out as a practitioner or perform any act
which he is prohibited from performing in terms of any
regulations
made under s 81(1)(g).
[17]
[32]
Section
83(8) makes it an offence for a person other than a practising
practitioner to draw up certain documents such as agreements
relating
to immovable property and the dissolution of a partnership, wills,
memoranda and articles of association of a company,
and documents
relating to proceedings in a civil court.
[18]
[33]
It is difficult to determine from the founding affidavit upon what
facts the applicant relies for the attack on s 83 of the
Attorneys
Act. He says that in criminal cases there is no need for two
practitioners; that a divided bar is not necessary to maintain
the
high standards in the legal services market; and that s 83(1) and (8)
of the Attorneys Act is unconstitutional “
because it
discriminates against advocates and reserves jobs for attorneys
,”
as an advocate is not included in the definition of “
practitioner
”
in the Attorneys Act.
[34]
It thus appears that the basis of the challenge to the impugned
provisions of the Attorneys Act is that they uphold the referral
rule
and prevent the applicant from doing certain work which attorneys may
do.
[35]
Given that the alleged discrimination is not on a listed ground, to
succeed with this challenge the applicant must show that
the impugned
provisions differentiate between the two classes of professionals,
which are not rationally connected to a legitimate
government
purpose; and that the differentiation amounts to unfair
discrimination.
[36]
The third and fourth respondents accept that there is differentiation
between advocates and attorneys. However, as stated above,
there is a
rational basis for the differentiation - the need to regulate the
legal profession and to protect the public.
[37]
The
need to regulate advocates and attorneys is self-evident. Each group
has its professional bodies which: determine the rules
by which
members must conduct their practices; take action to ensure that
members adhere to the rules; scrutinise and where appropriate,
take
action regarding applications for membership of the profession; and
generally see to the interests of members and the profession.
Broadly
speaking, the advocate is a specialist in forensic skills and giving
expert advice on legal matters and does not accept
work directly from
the client. The advocate has no direct financial dealings with the
client and may not practise in partnership
with another advocate. The
attorney has more general skills and is often qualified in
conveyancing and notarial practice, has direct
links with the client,
is allowed to practise in partnership and is responsible to keep
trust funds.
[19]
[38]
As appears from the answering affidavit by Mr David Bekker (“
Bekker
”)
made on behalf of the third and fourth respondents, services rendered
by advocates and attorneys are fundamentally different.
For example,
advocates play no role at all in the following areas of law which are
crucial to the economy: property transfers;
negotiation and
conclusion of commercial agreements; securitisation; mergers and
acquisitions; licensing and sales of businesses;
estate planning; tax
structuring; notarial work; statutory and commercial due diligence;
and the establishment of intellectual
property rights.
[39]
Bekker states that the organised attorneys’ profession
unequivocally supports the retention of a divided bar and the
referral rule, not for historical reasons but because experience has
shown that the division has a number of important benefits
to the
public. These include the emergence and development of a body of
courtroom specialists in forensic skills, providing members
of the
public with expert advice across all areas of the law, promoting
competition by providing access to such advice other than
by
establishing large firms, maintaining long-standing relationships
with lay clients and ensuring the independence of the bar.
[40]
The applicant has also failed to establish unfair discrimination. The
differentiation between advocates and attorneys is not
based on any
characteristic which has the potential to impair the fundamental
dignity of persons and does not affect them in a
comparably serious
manner. Instead, the differentiation is on a professional, not a
personal level, and flows from a person’s
choice to practise as
an advocate or attorney.
[41]
In
this regard the judgment in
CCMA
v Law Society, Northern Provinces
[20]
is instructive. The case concerned the constitutionality of rule
25(1)(c) of the rules for the conduct of proceedings before the
Commission for Conciliation, Mediation and Arbitration (CCMA), which
precludes members of the Law Society (and advocates) from
representing members of the public in certain proceedings before the
CCMA. The Law Society contended that the rule unfairly
discriminated against its members (and advocates) in violation of s
9(3) of the Constitution.
[42]
The
SCA said that the jurisprudence of the Constitutional Court amply
demonstrates that infringements of equality rights are inextricably
linked to infringements of dignity. It held that the Law Society
failed to establish any infringement of dignity.
[21]
[43]
But even if the applicant had established discrimination, it would be
justified under s 36 of the Constitution for the reasons
set out in
De Freitas
.
[44]
As to
the challenge to the impugned provisions of the Attorneys Act based
on s 22 of the Constitution, the SCA in
De
Freitas
held that the right to freely engage in economic activity under the
Interim Constitution did not entail regulation of a profession
in a
way which does not in effect deny that right.
[22]
Moreover, as in
CCMA
v Law Society, Northern Provinces
,
the impugned provisions do not regulate entry into the profession
neither do they affect the continuing choice of practitioners
to
remain in the attorney’s profession.
[23]
[45]
The
applicant’s contention that the impugned provisions of the
Attorneys Act are an infringement of s 34 of the Constitution
is
misplaced.
[24]
Apart
from the fact that there is no evidence that either the referral rule
or the impugned provisions work hardship on any
person, they do not
prevent access to courts or tribunals. Instead, they are directed at
the protection of the public.
[46]
The applicant’s challenge to the impugned provisions of the
Attorneys Act likewise cannot succeed.
[47]
Finally,
the applicant’s constitutional challenges to the referral rule
and the impugned provisions of the Attorneys Act have
become wholly
academic with the promulgation of the
Legal Practice Act 28 of 2014
.
Although it has not yet come into force, the
Legal Practice Act
envisages
the repeal of both the
Admission of Advocates Act and
the
Attorneys Act in their entirety.
[25]
As was said in
JT
Publishing
,
[26]
neither the applicant nor anyone else stands to gain the slightest
advantage from an order dealing with their moribund and futureless
provisions. Moreover, the
Legal Practice Act draws
a
distinction between, and separately defines attorneys and advocates;
and does away with the referral rule to the extent that
it permits an
advocate to render legal services for a fee upon a request directly
from a member of the public, provided that he
or she is in possession
of a Fidelity Fund certificate.
[27]
Costs
[48]
The respondents have asked that the applicant pay the costs of the
application, save for the fifth respondent who abides by
the decision
of the court. There is some force in the third and fourth
respondents’ argument that the applicant should pay
the costs
of the application, and that on a punitive scale. The founding papers
and the applicant’s heads of argument contain
scandalous and
vexatious material, and gratuitous attacks on members of the bar.
I have already referred to the unwarranted
attack on the member
investigating the applicant’s conduct. In the founding
affidavit he says, “
I have experience in this court that the
advocates of the Bar have no hesitation to deceive the court or to
lie to this court.
” In his heads of argument he
states that this court “…
continues to avoid its
duties under the Constitution by abusing [its] discretion in
Applicants’ striking off applications.
”
[49]
However,
although the application is misguided, I do not think it can be said
that the constitutional challenges are not genuine
or not seriously
mounted. Therefore, subject to what is stated below, the
general principle that when asserting a constitutional
right, a
losing non-state litigant should be shielded from the costs
consequences of failure, will apply.
[28]
[50]
What remains is the issue of costs relating to the postponements of
the application. The applicant set down the matter
for hearing
on 1 October 2013. Without warning he removed the matter from
the roll and set it down for hearing on 23 October
2013 on the motion
court roll. The application came before Davis J who postponed
the application for hearing on 24 February
2014, and directed that
the costs stand over for later determination.
[51]
On 24 February 2014 Blignault J made an order postponing the
application to 23 June 2014; interdicting the applicant from
practising as an advocate pending his application to the SCA for
leave to appeal against the order striking him from the roll of
advocates; and directing that all questions of costs stand over for
later determination. In his reasons for that order, Blignault
J says
that the application was postponed at the applicant’s request
to allow him to get the application in order; and that
the interdict
was granted because the applicant was not prepared to give an
unequivocal undertaking not to practise as an advocate,
pending the
finalisation of his appeal proceedings.
[52]
In the circumstances, fairness dictates that the applicant should pay
the wasted costs incurred by the first to fourth respondents,
occasioned by the postponements of the application on 1 October 2013,
23 October 2013 and 24 February 2014, respectively.
Order
[53]
I make the following order:
1.
The application is dismissed.
2.
The applicant shall pay the wasted costs incurred by the first,
second, third and fourth respondents, occasioned by the postponement
of the application on 1 October 2013, 23 October 2013 and 24 February
2014 respectively, on a scale as between party and party.
Such costs
shall include the costs of two counsel where so employed.
SCHIPPERS
J
Applicant’s
attorneys : Applicant is representing himself
First
respondent’s counsel : Advocates A Katz SC and W Jonker
First
respondent’s attorney : Bisset Boehmke McBlain Attorneys
Second
respondent’s counsel : Advocates T Masuku and P Magona
Second
respondent’s attorney : Bisset Boehmke McBlain Attorneys
Third
respondent’s counsel : Advocate A Brink
Third
respondent’s attorney : Bisset Boehmke McBlain Attorneys
Fourth
respondent’s counsel : Advocate A Brink
Fourth
respondent’s attorney : Nongogo, Nuku Atttorneys
Fifth
respondent’s counsel : Advocates D Potgieter SC and H Cassim
Fifth
respondent’s attorney : State Attorney
[1]
Cape
Bar Council v Noordien
(WCC case number 14514/2012 delivered on 13 August 2013 per Yekiso
and Cloete JJ) paras 18 and 21.
[2]
Prince
v President, Cape Law Society
[2000] ZACC 28
;
2001 (2) SA 388
(CC) para 22.
[3]
See
National
Director of Public
Prosecutions
v Phillips and Others
2002
(4) SA 60
(W) paras 35-37 and the authorities collected in para 36.
[4]
Beyers
v Pretoria Balieraad
1966 (2) SA 593
(A) at 604G-605A;
In
re Rome
1991 (3) SA 291
(A) at 305I-306F;
De
Freitas and Another v Society of Advocates of Natal and Another
2001
(3) SA 750
(SCA)
at
756F-G.
[5]
De
Freitas
n
4
.
[6]
De
Freitas
n 4 paras 8-10.
[7]
De
Freitas
n 4 para 13.
[8]
De
Freitas
n
4 per Cameron JA paras 6-9.
[9]
De
Freitas
n 4 per Cameron JA paras 11-14.
[10]
De
Freitas
n 4 per Cameron JA paras 12-14
[11]
Case
and Another v Minister of Safety and Security and Others; Curtis v
Minister of Safety and Security and Others
1999
(3) SA 617
(CC) para 49.
[12]
Harksen
v Lane NO and Others
[1997] ZACC 12
;
1998 (1) SA 300
(CC) para 54.
[13]
Sali
v National Commissioner of the South African Police Service and
Others
2014 (9) BCLR 997
(CC) para 10.
[14]
The
listed grounds are contained in s 9(1) of the Constitution which
reads as follows:
“
The
state may not unfairly discriminate directly or indirectly against
anyone on one or more grounds, including race, gender,
sex,
pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief,
culture,
language and birth."
[15]
Section
22 of the Constitution reads as follows:
“
Freedom
of trade, occupation and profession
.-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.”
[16]
General
Council of the Bar of South Africa v Geach and Others
2013 (2) SA 52
(SCA).
[17]
Section
83(1) of the Attorneys Act reads:
“
No
person other than a practitioner shall practise or hold himself or
herself out as a practitioner or pretend to be, or make
use of any
name, title or addition or description implying or creating the
impression that he or she is a practitioner or is
recognized by law
as such or perform any act which he or she is in terms of any
regulations made under section 81(1) (g) prohibited
from performing.
[18]
Section
83(8) reads:
“
(a)
any person, except a practising practitioner, who for or in
expectation of any fee, gain or reward, direct or indirect, to
himself or herself or to any other person, draws up or prepares or
causes to be drawn up or prepared any of the following documents,
namely –
i
any agreement, deed or writing relating to immovable property or to
any right in or to immovable property, other than contracts
of lease
for periods not exceeding five years, conditions of sale or brokers’
notes;
ii
any will or other testamentary writing;
iii
any memorandum or articles of association or prospectus of any
company;
iv
any agreement, deed or writing relating to the creation or
dissolution of any
partnership
or any variation of the terms thereof;
v
any instrument or document relating to or required or intended for
use in any action, suit or other proceeding in a court of
civil
jurisdiction within the Republic;
shall
be guilty of an offence and on conviction liable in respect of each
offence to a fine not exceeding R2 000 and in default
of payment
thereof to imprisonment not exceeding six months.
[19]
In
re Rome
n 4 at 305J-306E.
[20]
(005/13)
[2013] ZASCA 118
(20 September 2013).
[21]
CCMA
v Law Society, Northern Provinces
n 20 para 24.
[22]
De
Freitas
n 4 at 759F.
[23]
CCMA
v Law Society, Northern Provinces
n
20 para 25.
[24]
Section
34 of the Constitution reads:
“
Access
to courts.
-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.”
[25]
See
section 119(1)
of the
Legal Practice Act and
the Schedule thereto.
[26]
JT
Publishing (Pty) Ltd and Another v Minister of Safety and Security
and Others
[1996] ZACC 23
;
1997 (3) SA 514
(CC) para 16.
[27]
Section
34(2)
of the
Legal Practice Act.
>
[28]
Biowatch
Trust v Registrar, Genetic Resources, and Others
2009 (6) SA 232
(CC) paras 21-24.