By Brian Mhlongo

The article by Bruce Andre Barkhuizen (Bruce Andre Barkhuizen ‘Are legal practitioners admitted in terms of the Legal Practice Act commissioners of oaths?’ 2024 (Dec) DR 20) raises pertinent questions about the powers of legal practitioners admitted under the Legal Practice Act 28 of 2014 (LPA), particularly regarding their status as commissioners of oaths. While the article rightly highlights the provisions of the Justices of the Peace and Commissioners of Oaths Act 16 of 1963, a broader and contextual understanding of the legislative framework is necessary to address the concerns raised.

Section 118 of the LPA

Section 118 of the LPA provides for the interpretation of references to legal practitioners in other laws. Specifically:

• Subsection (a) states that references in any other law to an ‘advocate,’ ‘counsel,’ or ‘attorney’ must be construed as references to a legal practitioner under the LPA.
• Subsection (e) clarifies that references to entities like the General Council of the Bar of South Africa or the Association of Law Societies must now be understood as references to the Legal Practice Council (LPC).

This section effectively ensures continuity by recognising legal practitioners admitted under the LPA as equivalent to those admitted under earlier legislation. Consequently, it harmonises their status across legal frameworks, including their designation as commissioners of oaths, where applicable.

Designation of commissioners of oaths

The article correctly references reg 2 of the ‘Designation of Commissioners of Oaths in terms of Section 6 of the Justices of the Peace and Commissioners of Oaths Act.’ However, it overlooks the implications of s 118 of the LPA. Since the LPA equates legal practitioners admitted under its provisions to those admitted under repealed laws, there is no basis to conclude that such practitioners are excluded from the powers of commissioners of oaths.

Unless explicitly excluded, the designation of attorneys, advocates, and notaries in reg 2 should extend to legal practitioners under the LPA. The continuity principle enshrined in s 118 supports this interpretation.

Validity of declarations and affidavits

The assertion that declarations commissioned by legal practitioners admitted under the LPA are invalid lacks legal foundation. The LPA’s harmonisation provisions (s 118) indicate that such practitioners retain the powers of commissioners of oaths, as historically conferred on attorneys and advocates.

The LPA was enacted to modernise and unify the legal profession in South Africa, including ensuring consistency in the powers and responsibilities of legal practitioners. The provisions of s 118 establish continuity between the LPA and earlier laws, thereby safeguarding the status of legal practitioners as commissioners of oaths where applicable.

Brian Mhlongo is a Senior Legal Advisor: Office of the Executive Officer at the Legal Practice Council.