Right of attorneys to appear in court: What rights have been extended?

September 1st, 2012
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By Vuyo Mkwibiso

The Right of Appearance in Courts Act 62 of 1995 (the Act) was enacted inter alia to regulate and extend the right of attorneys to appear in court.

Section 3(2) of the Act provides that an attorney who wishes to acquire the right to appear in the Supreme Court (now the High Court, and includes the Supreme Court of Appeal) ‘may apply to the registrar of a provincial division of the Supreme Court’. Section 4(2) of the Act provides that the registrar shall issue a certificate to the effect that the attorney has the right of appearance in the Supreme Court if satisfied that the application meets the requirements of the Act. In terms of s 3(3) and (4), an attorney who has acquired the right of appearance in the Supreme Court is also entitled to appear in the Constitutional Court and to discharge the other functions of an advocate in any proceedings in the Supreme Court. By way of an amendment in 2005, s 4(4) was introduced in the Act, which provides that an attorney with the right of appearance ‘shall be entitled to appear in any court throughout the Republic’.

Section 4(3) of the Act has in the past caused some confusion as to the extent to which an attorney’s right of appearance has been extended. This section provides:

‘Section 21 of the Attorneys Act [53 of 1979], which requires rolls of attorneys to be kept, shall apply mutatis mutandis in respect of attorneys who have been granted the right of appearance in the Supreme Court.’

The relationship between these provisions of the Act and provisions of the Attorneys Act has been considered in recent High Court judgments. In issue has been the nature and extent of the rights of an attorney that have been extended in terms of the Act. For example, is an attorney who has been granted the right of appearance in terms of the Act entitled to appear only in the division of the High Court in which he was admitted or enrolled to practise as an attorney or is he thereby also entitled to appear in other divisions in which he has not been admitted or enrolled?

Further, what other functions may an attorney with a certificate of the right of appearance perform in divisions other than the one in which he was admitted or enrolled as an attorney in terms of the Attorneys Act?

Earlier case law

In S v Sewnandan 1999 (2) SA 1087 (O), which was decided before the 2005 amendment, an attorney admitted and enrolled in the then Natal Provincial Division had sought to represent an individual in appeal proceedings before the then Orange Free State Provincial Division. The court held that: ‘What the new Act has in essence brought about is that, although an attorney’s right to appear has been extended, his or her “area of jurisdiction” remained the same and can only be extended as set out in s 20 of the [Attorneys] Act’ (at 1094B-C).

The court further held that any other interpretation of s 4(3) of the Act would have rendered its reference to s 21 of the Attorneys Act superfluous. The court found that the attorney was not entitled to represent the appellant in the appeal proceedings.

In Zeda Car Leasing (Pty) Ltd t/a Avis Fleet Services v Pillay and Others 2007 (3) SA 89 (D), the then Durban and Coastal Local Division of the High Court dismissed the plaintiff’s summons on the ground that it had been signed by an attorney whose right of appearance had been granted by the registrar of the then Transvaal Provincial Division, but who had not been admitted or enrolled to practise in the Natal Provincial Division or the Durban Local Division. The court found that it was not proper for an attorney who holds a certificate of right of appearance in terms of the Act to be entitled to sign pleadings as an advocate or an attorney in a different division to where he was enrolled. The basis for its decision seems to have been that an attorney had to be constrained to practise in one division so as to ensure that the law society of which he was a member maintained control over him.

Further, the court considered that to extend attorneys’ jurisdiction to other divisions would pose a challenge in practice as different rules apply in different divisions. The court did not consider s 4(4) of the Act to have extended the right of appearance to all divisions of the High Court and considered the broad wording of the subsection to be unclear.

A different view – recent cases

The combined effect of the Sewnandan and Zeda decisions was that an attorney could only practise in a division in which he was admitted or enrolled. The correctness of these decisions has been considered in two recent judgments of the High Court. In both ABSA Bank Ltd v Barinor New Business Venture (Pty) Ltd 2011 (6) SA 225 (WCC) and Liberty Group Ltd v Singh and Another (KZD) (unreported case no 9105/11, 7-6-2012) (Swain J) the plaintiff’s combined summons and particulars of claim had been signed by an attorney who had been issued with a certificate of right of appearance in terms of s 4(2) of the Act, but who had not been admitted or enrolled as an attorney in the division of the court hearing the matter in terms of s 20 of the Attorneys Act. The defendants in both cases raised the attorney’s competence to sign the combined summons and particulars of claim in opposing applications for summary judgment.

In the Barinor case the Western Cape High Court found that the import of the Act had always been to grant an attorney the right of appearance in all divisions of the High Court, even before the 2005 amendment. The court stated that restricting the right of appearance to one division would lead to the ‘absurdity’ that an attorney could appear in the Supreme Court of Appeal and in the Constitutional Court, but not in other High Courts. As to the other functions to be performed by an attorney with the right of appearance, the court found that there was ‘nothing in the Act that suggests a legislative intent to derogate from the general provisions of the Attorneys Act or, in particular, from those of ss 20 and 21’ (at para 12).

The Act did not seek to amend or replace the Attorneys Act and both Acts had to be read together, said the court. Reading s 20 of the Attorneys Act together with the provisions of the Act, the court observed that an attorney with the right of appearance could appear in all divisions of the High Court and discharge all other functions of an advocate in those divisions, but could not practise as an attorney in a division in which he had not been enrolled in terms of s 20 of the Attorneys Act. As such, the court upheld the opposition to summary judgment.

In the Liberty Group matter, the KwaZulu-Natal High Court in Durban reviewed all of the above cases and found that the Sewnandan and Zeda cases had been incorrectly decided as they had over-emphasised the control element of the purpose of the Act and had paid little attention to the purpose of extending an attorney’s right of appearance. The court found that s 4(1) of the Act provided sufficient control mechanisms as it made the right of appearance in the High Court conditional on the issuing of certificates by the secretary of the law society to which the attorney belonged to the effect that the attorney had practised for at least three years and that there were no proceedings to strike his name from the roll or suspend him from practice. The requirement that the registrar, in terms of s 4(3) of the Act read with s 21 of the Attorneys Act, keep a register of all attorneys who have been granted the right of appearance provided further control over attorneys as registrars would be obliged to circulate any orders striking attorneys from the roll or suspending them from practice. The court therefore held that an attorney, by virtue of the issue of a certificate of right of appearance in one division of the High Court, acquires the right to appear in other divisions of the High Court.

The court in the Liberty Group matter confirmed that it was the function of an advocate to draw up and sign pleadings such as a combined summons in his capacity as an advocate. The signing of a combined summons by an attorney in his capacity as an attorney was never the function of an advocate and could not be justified by s 3(4) of the Act, which confers the right to exercise the other functions of an advocate, where the summons is issued in a division other than where the attorney was admitted or enrolled. As the combined summons had been signed by an attorney in his capacity as an attorney, the court found that such signing constituted an irregularity. The court, however, condoned the irregularity on the ground that the defendants did not suffer any prejudice as a result of it.

Therefore, in terms of this decision, an attorney with a certificate of the right of appearance is entitled to perform the functions of an advocate, but is not entitled to perform the functions of an attorney, in a division in which he has not been enrolled in terms of s 20 of the Attorneys Act. This means that an attorney cannot sign a combined summons in his capacity as attorney in a division in which he has not been enrolled, but may sign it as an advocate if he holds a certificate of right of appearance.

However, due to the conflicting decisions in respect of the Act, attorneys are advised to err on the side of caution and comply with the provisions of the Act until certainty has been reached in this regard.

Vuyo Mkwibiso LLB (National University of Lesotho) LLM (UKZN) is an attorney at Cox Yeats in Durban.

This article was first published in De Rebus in 2012 (Sept) DR 18.