Challenges faced by attorneys – rights to appear in superior courts

December 1st, 2022
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By Prof Fareed Moosa

Under s 33(1) of the Legal Practice Act 28 of 2014 (LPA), attorneys and advocates have the right to practice law anywhere in South Africa (SA). For attorneys, this right is restricted by s 25(3)(a). It reads: ‘An attorney who wishes to appear in the High Court, the Supreme Court of Appeal or the Constitutional Court must apply to the registrar of the Division of the High Court in which he or she was admitted and enrolled as an attorney for a prescribed certificate to the effect that the applicant has the right to appear in the High Court, the Supreme Court of Appeal or the Constitutional Court and which the registrar must issue if he or she is satisfied that the attorney –

(a)(i) has been practising as an attorney for a continuous period of no less than three years: Provided that this period may be reduced … by the Council if the attorney has undergone a trial advocacy training programme approved by the Council as set out in the Rules;

(ii) is in possession of an LLB degree; and

(iii) has not had his or her name struck off the Roll or has not been suspended from practice or that there are no proceedings pending to strike the applicant’s name from the Roll or to suspend him or her … ’.

Section 25(3) is couched imperatively: The certificate ‘must’ be issued if the registrar ‘is satisfied’ that the applicant attorney discharges the onus of showing that the prescribed requirements are met. Thus, the registrar has no discretion. In this context, the word ‘and’ connecting ss 25(3)(a)(ii) with (iii) indicates that the three requirements operate conjunctively (see Maphango and Others v Aengus Lifestyle Properties (Pty) Ltd 2012 (3) SA 531 (CC) at para 50).

When s 25(3) is viewed through the prism of the spirit, purport and objects of the Bill of Rights as enjoined by s 39(2) of the Constitution, then an interpretation must be placed thereon which best preserves rights (see Alves v Legal Practice Council and Similar Matters 2019 (6) SA 18 (WCC) at paras 10-11). Section 25(3) must also be viewed through the lens of history (see Mistry v Interim Medical and Dental Council of South Africa and Others 1998 (4) SA 1127 (CC) at para 25).

During Apartheid, only advocates had the right to appear in superior courts. The denial of this right to attorneys constituted unfair discrimination based on professional status. Section 9(2) of the Constitution envisages legislative and other measures that advance attorneys as a category of persons disadvantaged by discrimination. Thus, the LPA must be applied in a way that is transformative by promoting substantive equality between the attorneys and advocates. This accords with s 3 that records its aims as including to transform and restructure the legal profession in a way that embraces constitutional values and ensures the rule of law is upheld, and to broaden access to justice by removing barriers. These aims form part of the LPA’s internal context, which is relevant when its provisions are interpreted (see Independent Institute of Education (Pty) Ltd v KwaZulu-Natal Law Society and Others 2020 (2) SA 325 (CC) at paras 41-42).

Under s 25(4)(a), a copy of an attorney’s application must be served on the Legal Practice Council (LPC) whose mandate is to ensure the maintenance of professional standards and norms, and to enhance and maintain the integrity and status of the legal profession (see Legal Practice Council v Van Wyk (WCC) (unreported case no 3920/2013, 4-11-2021) (Sher J (Bozalek J concurring) at paras 63-64). The LPC may object to the conferral of a s 25(3) certificate. However, the LPA lacks a procedure to resolve a disputed objection, and it fails to empower the registrar to adjudicate same.

It is trite law that, as a creation of statute, the registrar is imbued with only those powers conferred by law. Since the High Court’s powers in s 44 do not encompass an objection under s 25(3), its power to adjudicate same is to be found in its reservoir of inherent powers (see Ex parte Millsite Investment Co (Pty) Ltd 1965 (2) SA 582 (T) at 585G-H). All this is relevant only if s 25(3)(a) passes muster under s 36(1) of the Constitution. For the reasons given below, I submit that it fails the litmus test of s 36.

Limitations on attorneys’ rights

Section 25(3)(a) limits an attorney’s freedom to perform certain litigation activities in superior courts. Thus, it limits an attorney’s freedom to practice their profession entrenched in s 22 of the Constitution (see Esau and Others v Minister of Co-Operative Governance and Traditional Affairs and Others 2021 (3) SA 593 (SCA) at para 118). The right to ply one’s profession by which a livelihood may be earned is connected to the right to work which ‘is constitutive of one’s dignity’ (see Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC) at para 59 and see also Ex parte Tlotlego (GJ) (unreported case no 2017/34672, 8-12-2017) (Victor J) at para 8). Thus, s 25(3)(a) weakens the attorney’s dignity protected in s 10 of the Constitution. Since s 25(3)(a) excludes advocates from its radar, it also infringes an attorney’s rights to equality entrenched in s 9 of the Constitution.

These limitations exist in a ‘law of general application’ envisioned by s 36(1) of the Constitution. The LPA is national legislation regulating the legal profession. Accordingly, the onus rests on the state actor seeking to enforce the limitations to show that they are reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, after the balancing considerations in ss 36(1)(a) to (e) are weighed in a proportionality evaluation (see Head of Department, Mpumalanga Department of Education and Another v Hoërskool Ermelo and Another 2010 (2) SA 415 (CC) at para 52). These are now discussed.

The absence of a requirement that newly admitted attorneys are to enhance their litigation skills during the three-year bar indicates that it is not geared at skills development. It is presumably aimed at public protection against practitioners deemed insufficiently skilled for certain court work. If so, then this begs asking: Why is protection required against qualified attorneys who, by law, can perform all other services in relation to the litigation concerned, save for the right to appear in court?

Also, why is such protection not required against newly admitted advocates? No plausible justification exists for this inherently unequal treatment targeted at attorneys when compared to the treatment of similarly positioned advocates, all of whom enjoy the unfettered right to appear in the courts listed in s 25(3).

The nature of the limitations is self-evident from s 25(3). The three-year period is an arbitrary dividing line. Also, there is no basis to contend that precluding attorneys for three years, or any other period, from appearing in certain courts achieves public protection. This is because attorneys satisfying the three-year period are not necessarily more experienced in litigation than when they were enrolled to practice. As there is nothing in the LPA obliging an attorney to engage in litigation work during the three-year period, the exclusion catered for in s 25(3) and its duration bear no rational relation to achieving any identifiable government objective.

The lack of a relation between the limitations and their purpose is also palpable when regard is given to the fact that s 25(3) excludes qualified attorneys from appearing for litigants, even on a pro bono basis. This undermines the attainment of the LPA’s goal of broadening access to legal services. Also, s 25(3) creates fertile ground for increased litigation costs as affected attorneys are obliged to brief Counsel. In a country with high rates of poverty and unemployment, this creates a financial barrier that may well lead to a denial of access to justice for some litigants (see Camps Bay Ratepayers’ and Residents’ Association and Another v Harrison and Another 2012 (11) BCLR 1143 (CC) at paras 10-11). If so, then s 25(3) compromises the fulfilment of the LPA’s stated aims.

Attorneys hit by the exclusion in s 25(3) remain entitled to appear in courts of equal status to a High Court (such as, the Labour Court), and in high courts of appeal (such as, the Labour Appeal Court and Competition Appeal Court). These courts are not mentioned in s 25(3), nor do they fall in the narrow definition of ‘High Court’ in s 1 of the LPA. Therefore, s 25(3) is not designed in a way that effectively enhances the attainment of its inferred aims. This underscores the absence of a rational connection between the limitations and their purpose.

The intrusions catered for by s 25(3)(a) is broad in extent and highly corrosive of fundamental rights. First, an attorney must practice continuously for three years. No provision is made for condonation in cases of non-compliance. Any interruption in the period of practice causes the clock to run de novo. Therefore, an attorney may be ineligible for a certificate despite being in practice for an aggregate of more than three years, albeit non-consecutive. Secondly, the stipulation that only attorneys with an LLB degree (as defined) qualify for a certificate means that attorneys with an equivalent degree from a foreign country are ineligible to apply for a certificate, despite such qualification being catered for in s 26(1)(b).

If s 25(3) is informed by concerns as to the competency of admitted attorneys to render certain litigation services, then the less intrusive answer lies in subjecting candidate legal practitioners to more intensive training that adequately prepares them for litigation practice.

The admission of an attorney to practice is a representation to the public that the admitted attorney is adequately trained and qualified to practice law in accordance with the standards determined by the legal profession for its members. Every attorney hit by s 25(3) remains entitled to undertake litigation work, even in courts where they are unable to appear. As a result, it is submitted that s 25(3) sends mixed messages about the competence of the attorneys concerned. Furthermore, it is conceivable that the public’s confidence in the legal profession may be dented by reason that attorneys are unleashed onto the public whom the legislature deems insufficiently competent to undertake certain aspects of litigation work.

Conclusion

The Constitution promises a transformed society in which we are united in our diversity, in which every person is equally protected by law, and which frees the potential of everyone. In line with these aspirations, the LPA creates a single, independent legal profession broadly reflecting our country’s diversity and its demographics, seeking to ‘provide equal opportunities for all aspirant legal practitioners’ (s 3(b)(iii)). However, instead of creating a level playing field where all admitted practitioners are equally entitled to practice unhindered by barriers, the legislature placed obstacles in the path of newly admitted legal practitioners.

The limitations imposed by s 25(3), on the one hand, give unfair advantage to advocates in the practice of law; on the other, it relegates certain categories of attorneys to second class citizenship in a unified profession. All this is reminiscent of the inferior, offensive position which attorneys were, by law, obliged to endure during the dark days of Apartheid. Section 25(3) is, thus, a reminder that the more things change, the more they stay the same.

For as long as s 25(3) distends the LPA, its lofty goals will remain unfulfilled aspirations etched in nice-sounding words. This will be so particularly if the LPC embraces the letter and spirit of s 25(3). If so, then this fledgling regulatory body, which must serve the interests of all legal practitioners, not merely some, runs the risk that it too will be tainted like its Apartheid-era predecessors who abided and enforced manifestly unjust laws that discriminated against attorneys. Undoubtedly, s 25(3) does violence to rights of attorneys to dignity, equality, and freedom to practice law. As such, the LPC cannot enforce discipline on a legal profession if it is not disciplined by, nor seen as being disciplined by, the Constitution and its values.

Prof Fareed Moosa BProc LLB (UWC) LLM (UCT) LLD (UWC) is a legal practitioner and Professor at the Department of Mercantile and Labour Law at the University of the Western Cape in Cape Town.

This article was first published in De Rebus in 2022 (Dec) DR 11.

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