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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 provides for the interpretation of references to legal practitioners in other laws. Specifically:
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.
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 Since the LPA equates legal practitioners admitted under its provisions to those admitted under repealed laws, there is no basis to conclude that such practitioners are excluded from the powers of commissioners of oaths.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.
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.
The Judicial Service Commission (JSC) recently concluded its interviews for the vacant position of judge president of the Western Cape Division of the High Court. Following an impressive interview, Judge Nolwazi Mabindla-Boqwana was recommended for the post.
While Judge Mabindla-Boqwana’s interview may have stolen the show, the interview process must be lauded for the collegial manner in which the commissioners and candidates conducted themselves. One might be tempted to dismiss the emphasis on collegiality as undue focus on niceties, and a sideshow to the substantive proceedings of the JSC. That would be a mistake.
In recent years, the public and the judiciary have lamented the conduct of some legal practitioners and judicial officers who have not particularly covered the profession in glory. In Van Schalkwyk v Minister of Justice and Constitutional Development and Others [2024] 6 BLLR 640 (GJ), the Gauteng Local Division of the High Court upheld the dismissal of a Kempton Park magistrate who had been dismissed for misconduct. Among the comments attributed to this particular magistrate in the charge sheet are remarks such as ‘Have you finally lost your marbles?’, directed at a colleague, and that a fellow magistrate’s ruling ‘sucked’.
This was not the first time comments made by a judicial officer or legal practitioner had been at the centre of court proceedings. Similar conduct had been seen earlier in Gaone Jack Siamisang Montshiwa (Ex Parte Application) (SCA) (unreported case no 672/2021, 3-3-2023) (Dambuza ADP, van der Merwe and Nicholls JJA and Chetty and Siwendu AJJA), where the applicant approached the Supreme Court of Appeal (SCA) after the North West Division of the High Court refused his application for admission as a legal practitioner. The SCA castigated the applicant for a letter in which he referred to an attorney who opposed his application for admission as ‘idiotic’, ‘barbaric’ and ‘exhibiting the level of substance expected from “a passionate first year law student”’. In dismissing the appeal, Dambuza ADP made the following remarks –
‘All this conduct demonstrates his lack of appreciation of the ethos and principles that govern the legal profession and the courts of this country’; and that ‘His conduct demonstrates a predisposition to bouts of extreme anger and disrespect.’
In the recent case of Public Protector of South Africa v Chairperson of the Section 194(1) Committee and Others [2024] 4 All SA 693 (SCA), Ponnan JA of the SCA stated, at para 48 that ‘exasperated sighs, soapbox oratory, empty rhetoric, political posturing, theatrical gestures and long-winded dismissive non sequiturs have no place in a courtroom’.
These cases demonstrate how important it is for processes such as the JSC interviews to be conducted in an exemplary manner, so as to set the tone for all legal practitioners and restore the public’s faith in presiding officers as professionals who maintain high standards of conduct. It bodes well for the judiciary, and the legal profession at large, that measured jurists, such as Judge Mabindla-Boqwana continue to lead with exemplary poise and collegiality. It is particularly relevant in the case of the Western Cape Division of the High Court, which has been troubled by much-publicised internal conflict. All the best to Madam Judge President-elect as she takes on her new role.
Siyabonga Nyezi BCom (UCT)
LLB (Unisa) is Master of Laws
candidate at the University of the Witwatersrand.
This article was first published in De Rebus in 2025 (Jan/Feb) DR 5.
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