South African Legal Practice Council v Alves and Others 2021 (4) SA 158 (SCA)The Legal Practice Council (LPC) plays a pivotal role in the lives of legal practitioners and their law firms. The role is enhanced by the Constitution as the foundation of the Legal Practice Act 28 of 2014 (the LPA). The LPA regulates every aspect of the legal profession, it provides for the enrolment and admission of legal practitioners, the establishment of legal firms and the conversion of the statuses of legal practitioners (from attorney to advocate and vice versa). In instances of converting statuses, the relevant sections are ss 32 and 115 of the LPA. In the Alves case, the court a quo and the Supreme Court of Appeal (SCA) had to interpret s 115 in relation to s 32 of the LPA. In providing the interpretation referred to, other important aspects (which include the powers of the LPC when dealing with the conversion of the status of a legal practitioner) were interpreted.
The judgment of the SCA is an important interpretation of South African law. It ought to be noted that in a country such as South Africa (SA), powers granted to public bodies by the law are not absolute because there is a Constitution that is able to serve as the basis for arguments against the limitation of rights. With the above context in mind, this article will provide an analysis of the conversion of a legal practitioner’s status in terms of Alves.
The issue in Alves was whether the applicants could rely on the provisions of s 115 of the LPA, in their quest to have their statuses converted from attorney to advocate. The Western Cape Division of the High Court found in their favour and ordered that the LPC remove their names from the roll of attorneys and proceed to enrol them as advocates of the High Court. With leave to appeal from the High Court, the applicants elected to appeal the order against them and approached the SCA.
From the nine applicants in the case, seven were admitted as attorneys in terms of the Attorneys Act 53 of 1979 and before 1 November 2018. The remaining two were admitted and duly enrolled as attorneys after the enactment of the LPA. Only the first applicant had initially applied for conversion in terms of s 32 of the LPA. Her application was, however, denied because she had not completed a trial advocacy programme (as required by the LPC in its rules) (at para 3). She, therefore, applied to the SCA based on s 115 of the LPA.
Section 115 provides that any person who was entitled to be admitted and enrolled as a legal practitioner before 1 November 2018 is, after the date, ‘entitled’ to such admission and enrolment (at para 4). On the other hand, s 32 adds that a legal practitioner (who has already been admitted) may apply to the LPC for the conversion of his or her enrolment (either from attorney to advocate or vice versa).
The interpretation of s 115 was at the heart of the case. The court referred to Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] 2 All SA 262 (SCA), where it was held that principles of interpretation demand that the meaning of words be attributed to the document in question and the circumstances that led to its existence. Additionally, consideration has to be given to the language used (as with rules of grammar) and most importantly, the context (at para 5). Interpretation is not an objective process but a subjective one, hence the reference to ‘context’. Additionally, a sensible meaning supersedes one that undermines the purposes of the relevant document (in this instance the document being the LPA).
The court held, in para 6, that the circumstances, which demanded the promulgation of the LPA includes the fact that SA was previously served by a divided legal profession – where advocates were governed by the Admission of Advocates Act 74 of 1964 and attorneys by the Attorneys Act. The introduction of the LPA entrusted the maintenance of all legal practitioners to the LPC. This resulted in the consolidation of all rolls (attorneys and advocates) into one (at para 12). The SCA held that in terms of the LPA, a legal practitioner who has been admitted by the High Court prior to the enactment of the Act is entitled to be enrolled in terms of the provisions of the Act (at para 12). In this instance, the LPC has no discretion to decline an enrolment.
The LPC is granted powers to regulate legal practitioners and the profession in its entirety. The High Court is the only institution with the power to strike the name of a legal practitioner from the roll of practising lawyers (at para 13). The powers of the LPC are, in this instance, limited to a certain extent.
In admitting that s 115 is a transitional provision, the court also held that the intention of the legislature (in creating transitional legislation) was that such legislation would be applicable to proceedings that were commenced before the promulgation of the LPA in question (at para 16). This means that the intention behind s 115 is that anyone who met the relevant admission and enrolment requirements before 1 November 2018 is entitled to such admission and enrolment in terms of the LPA. An example to a transitional provision was found in s 116(2) of the LPA.
Anyone who acquired a right to be admitted and enrolled in legal profession before 1 November 2018 is entitled to be admitted and enrolled in terms of the LPA. This provision contains no limitation (at para 17). The purpose of s 115 is to preserve rights of those who qualified for admission before the LPA was promulgated.
The SCA referred to Ex Parte Bakkes and Similar Cases 2019 (2) SA 486 (ECG), where it was held that s 115 contains no ambiguity. Anyone who qualified for admission in terms of the Admission of Advocates Act or the Attorneys Act before the LPA is entitled to enrolment under the Act. The court added that the LPA may be used as a mere vehicle for admission (at para 17). Requiring that a person be qualified for admission in terms of the Attorneys Act and the Admission of Advocates Act and the LPA would amount to unfairness, which is not the intention of the legislature (at para 17).
Importantly, the SCA held at para 18 that reliance on s 115 is eternal for anyone who qualified for admission into the legal field before 1 November 2018. The provision is transitional in that the legislature acknowledged the fact that the number of people falling under s 115 will eventually disappear because it will be relatively small (from date of the LPA) (at para 18). Another case referred to by the SCA was Ex Parte Goosen and Others 2020 (1) SA 569 (GJ), where the word ‘entitled’ (as contained in s 115) was carefully considered. The court held that the meaning of the word is consistent with a right, this essentially means that where there is a right there is also an entitlement (at para 21).
Section 32 of the LPA does not grant absolute powers to the LPC and in Alves, the LPC exceeded its powers. The court ultimately ruled that the appeal be dismissed with no order as to costs.
The LPC plays a very important role in shaping the legal profession of SA. Alves is important because it provides clarity to inevitable questions that are consequent to the introduction of the LPA. Section 115 applies to anyone who met admission and enrolment requirements before 1 November 2018. Section 32 does not grant the LPC any absolute powers. The LPC does not convert statuses of legal practitioners, it serves as a vehicle to assist in conversion processes. The application of s 115 is eternal because it is reserved for a decreasing number of people that qualified for admission before 1 November 2018.
Mpho Titong LLB LLM (NWU) is a legal intern and Mamohapi Diseko LLB (Wits) LLM (NWU) is a Legal Officer (Professional Affairs) at the Legal Practice Council in Mahikeng.
This article was first published in De Rebus in 2024 (Jan/Feb) DR 34.
