Matlhwana v South African Legal Practice Council and Others (GP) (unreported case no 051162/2024, 15-5-2024) (Millar J)

The Gauteng Division of the High Court in Pretoria found the decision by the Legal Practice Council (LPC) not to register a candidate legal practitioner’s cession of Practical Vocational Training (PVT) contract unlawful. In an urgent matter based in terms of rule 6(12)(a) of the Uniform Rules of Court, the applicant, Matsobane Shaun Matlhwana, approached the High Court in Pretoria seeking, inter alia, to review and set aside the failure of the Gauteng Provincial Office of the Legal Practice Council to register a cession of his PVT contract on 17 January 2024. The applicant also sought an order for the registration of such cession.

The High Court said that on 1 February 2022, the applicant entered into a PVT contract with Mr Mkhabela in which he undertook to serve Mr Mkhabela as a candidate legal practitioner for a period of 24 moths. The period would be completed on 31 January 2024. The High Court pointed out that the applicant was 22 months and 19 days into his PVT contract when he resigned on 20 December 2023 from Mr Mkhabela’s employment. On 17 January 2024, he entered into a cession agreement in respect of his PVT contract with Mr Diaho. The High Court added that on 18 January 2024, the applicant logged a cession agreement duly signed and completed in all respects with the Gauteng Provincial Office of the LPC.

The High Court noted that the cession was lodged for the purpose of registration so that the applicant could continue his PVT as a candidate legal practitioner and complete his 24-month period of such training for which he had originally contracted. The High Court pointed out that the applicant heard nothing from the LPC. The LPC did not acknowledge receipt of the cession and it also did not communicate whether the cession had indeed been registered or not. The High Court said that on 3 April 2024, the applicant having completed in the aggregate 24 months of PVT with Mr Mkhabela and Mr Diaho respectively, made application for his admission as a legal practitioner. However, the application was served by the LPC that day and enrolled for hearing taking into account that it was required to lie for inspection before the LPC for a period of 30 days, on 16 May 2024.

The High Court pointed that the reason proffered for making this request was that:

‘The cession agreement that was entered into during January 2024 was not registered by the Legal Practice Council as there was a 14-day gap between the date you left Mr Mkhabela and the date you commenced with Mr Diaho resulting in interrupted service therefore you cannot rely on the period served under Mr Diaho as the cession agreement was not registered.’

The High Court added that the next step taken by the LPC was the delivery on 7 May 2024, of a notice of intention to oppose the application for admission. The High Court said that the LPC took issue with the fact that the application was brought as one of urgency. The LPC also took issue with the fact that the applicant had proceeded to bring an application for admission in circumstances where he was not in possession of all the necessary documents. The High Court added that it is self-evident that if the LPC had communicated its decision to the applicant within a reasonable period of time, after he had lodged the cession for registration, the urgent application would have been avoided.

The High Court had to take a decision whether or not the LPC was entitled to refuse to register the cession of the applicant’s PVT contract from Mr Mkhabela to Mr Diaho, and whether or not, having regard to the evident ‘break in service’ of two weeks it was entitled to do so. The High Court looked to rule 22.1.6 of the Final rules as per s 95(1), 95(3) and 109(2) of the Legal Practice Act 28 of 2014 (LPA), and explained its provision in detail, noting:

• ‘In terms of rule 22.1.6.1 that a practical vocational training contract may with the consent of the principal and the candidate attorney concerned be ceded to any other principal willing to accept such cession.
• In terms of rule 22.1.6.2, that in the event of death, mental illness, insolvency, conviction of a crime, suspension from practice, striking off the roll or discontinuation of practice of the principal under whom the candidate attorney is serving, or debarring of that principal from engaging or continuing to engage a candidate attorney, or any other cause, direct that the practical vocational training contract concerned be ceded to any other principal willing to accept such cession, and all service completed under the ceded contract shall be effective for purpose of the Act and the rules.
• In terms of rule 22.1.6.4, that an agreement for the cession of a practical vocational training contract shall be registered within 2 months from date on which the service of the candidate attorney concerned may have terminated with the cedent, or within such further period as a court on good cause would allow.
• In terms of rule 22.1.6.4, besides providing for the time period within which the cession is to be lodged, provides further:
• in terms of rule 22.1.6.4.1 that an affidavit be logged by the cedent stating whether the provisions of the Act and rules relating to the service of the candidate attorney with him were complied with and the date of on which such candidate’s services were terminated; and
• in terms of rule 22.1.6.4.2 an affidavit by the cessionary stating the date on which the candidate attorney assumed duty with the cessionary.’

The High Court pointed out that it does not behoove the LPC to argue, as it has done in the application, that the consequences of a break in service of two weeks is tantamount to a termination or abandonment of the PVT contract by the applicant.

The High Court said the rules themselves provide that there may be circumstances in which there would be an interruption in service such as for example the death of a principal as provided for in rule 22.1.6.2. The rules themselves provide for cession in such circumstances, rule 22.1.6.6 enables the LPC to accept a cession signed by a third party. The High Court pointed out that the rule cannot be interpreted in the manner that the LPC contends it must be.

The High Court said that it was argued for the LPC that this application was in any event a brutum fulmen in that the applicant would not in any event be entitled to admission in consequence of the break in service. The basis of this argument was that regulation 6(1)(a) requires that in order to be admitted, the applicant was required to serve a ‘uninterrupted period of 24 months’. The High Court added that this regulation must be read subject to the provisions of rule 22.1.6 and the objects of the LPA. The High Court pointed out that the regulation properly interpreted does not mean uninterrupted in the sense of the period being continuous and contiguous – if that was were so, it would render the provisions of rule 22.1.6.2 superfluous and would mean that any applicant in respect of whom there was any broken service for whatever reason would be disqualified.

The High Court pointed out that the applicant did not seek credit for the period of the break in service in order to claim the completion of 24 months of PVT but relies on the subsequent service with Mr Diaho, which should be considered had the LPC registered the cession timeously. The High Court said that in this application, although it did not form the basis for the initial decision communicated on 30 April 2024, the LPC also took issue with the fact that the applicant had entered into a secondment agreement with Mr Dihao in terms of which he would be seconded to another firm of legal practitioners in order to gain experience in the field of competition law. The High Court added that if his contract had been abandoned or terminated as the LPC argued, and for that reason a cession could not be registered, then on that basis, the LPC had no authority to interrogate the reason for the secondment and whether or not it was permissible under a PVT contract.

The High Court pointed out that it declined to make any finding on the issue of the secondment, save to state that it is not uncommon that candidate legal practitioners, whether as candidate attorneys or candidate pupils, are seconded to other firms of attorneys/advocates so that they may gain exposure to areas of practice which their principal may not be engaged in for their benefit. The High Court said this is in no way detracts from the training they receive or their respective obligations.

The High Court pointed out that the applicant argued that the failure and refusal of the LPC to register the cession of his PVT contract, is an administrative decision falling within the ambit of the Promotion of Administrative Justice Act 3 of 2000 (PAJA), squarely within s 1 of PAJA. The High Court said that the decision to refuse registration on substantive grounds as it did on 30 April 2024, means that a decision was taken which falls squarely with the ambit of PAJA. The High Court said that it was on that basis that it found the decision to be reviewable under PAJA.

The High Court pointed out that it was argued that the decision of the LPC was reviewable on the following basis –

• ‘that the action was procedurally unfair;
• that the decision was materially influenced by an error of law; and
• the action was taken rationally to the purpose for which it was taken and/or the purpose of the empowering provision.’

The High Court dealt with the three reasons brought in an argument on the decision of the LPC.

Among other explanation the High Court said that the LPC neither notified the applicant of its decision, furnished him with any reason for the decision until 30 April 2024. This was a 3,5 months after the cession had been submitted for registration and only 16 days before the hearing of his application for admission. Notwithstanding, the obligation on the LPC to furnish reasons for the decision, the only reason given was that communicated on 30 April 2024.

The High Court further stated that the applicant argued that the LPC in failing to register the cession had misconstrued the provisions of rule 22.1.6. The court found that the LPC’s interpretation of the rule and application of it to exclude persons such as the applicant, who may have broken service, from registering a cession of their contract when the rule itself specifically provides for the registration of cessions in certain circumstances where broken service is permitted and that a cession of the PVT contract notwithstanding such broken service can be registered. The High Court pointed out that in Genesis Medical Aid Scheme v Registrar, Medical Schemes and Another 2017 (6) SA 1 (CC) it was held by the Constitutional Court that an error of law must be so material that the proper application of the law would render the decision so taken as being reviewable.

The High Court said that the action was not taken rationally to the purpose for which it was taken and/or the purpose of the empowering provision. The High Court pointed out that the main purpose of rule 22.1.6 is to fairly and practically cater for instances candidate attorneys such as the applicant find themselves for whatever reason, in a position where they are no longer able or willing to continue with their PVT training with their initial principal and seek to complete that training with another principal. The High Court added that it is a special type of contract, which finds like in the LPA and which must of necessity be interpreted consonant with the purpose for which the LPA was promulgated. To do otherwise, would result in the absurd situation where broken service would be condoned if the principal suffered a misfortune but would not be condoned if he did not.

The High Court said that whether or not there has indeed been proper and satisfactory service under the PVT contract whether continuously or broken, is more properly a matter to be decided by the court hearing an application for admission. The High Court added that it would be in the position of that court to review the entirety of the period for which the candidate attorney had served and all the circumstances relating thereto and to then decide whether or not that candidate attorney has met the requirements. The High Court pointed out that it is simply not open to the LPC to adopt an interpretation of the rules, which has as its consequence the arbitrary exclusion of certain persons from pursuing entry into the legal profession.

The High Court said that having regard to the particular facts and circumstances in the matter. It was not persuaded that the applicant, a candidate attorney, ought to be deprived of his costs in view of the fact that he has been successful in the application. The High Court added that the approach adopted by LPC is not in keeping with its statutory obligations and is to be deprecated. Millar J made the following order:

• ‘The applicant’s non-compliance with Uniform Rules of Court is hereby condoned and the matter is heard on an urgent basis in terms of rule 6(12)(a) of the Uniform Rules.
• The first and/or third respondents’ decision not to register the applicant’s cession of the PVT contract is declared unlawful and is reviewed and set aside.
• The applicant’s cession of his PVT contract is deemed to have been duly registered on 18 January 2024.
• The first respondent is ordered to pay the costs of the application on an attorney and client scale, which costs include the costs of two counsel.’

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2024 (July) DR 34.