Unintended consequences of the LPA on the admission applications

Unintended consequences (sometimes unanticipated consequences or unforeseen consequences) are outcomes that are not the ones foreseen and intended by a purposeful action.

This letter is written to highlight the postponement of admission applications of legal practitioners in the Gauteng Division of the High Court in Pretoria, which were issued after 1 November 2018, pending the outcome of the Full Bench judgment of the Gauteng Local Division of the High Court in Johannesburg.

On 18 February, one of our candidate legal practitioners attended the Gauteng Division to have his admission application heard under case number 88173/18.

Despite having satisfied all the requirements under the Legal Practice Act 28 of 2014 (LPA) for admission and enrolment as a legal practitioner, save for those requirements yet to be prescribed by the minister, the application was postponed sine die due to the fact that same was issued after 1 November 2018.

On Monday, 25 February, several applicants were admitted as legal practitioners at the Gauteng Division, despite only becoming eligible to qualify as legal practitioners and/or having their applications issued after 1 November 2018.  It is our understanding that legal practitioners in other divisions of the High Court in other provinces are being admitted and enrolled.

The apparent lack of uniformity among the courts, who continue to admit applicants during this uncertain period, is severely prejudicial to those applicants whose applications were postponed, potentially to a date several months away.

The barriers which prevent entry into the legal profession, are well documented. This new seemingly artificial barrier which impedes candidate legal practitioners who diligently served their articles under the now repealed Attorneys Act 53 of 1979, needs to be urgently addressed. It can never be that due to the lack of clarity on the provisions of the LPA and/or the failure to have clear transitional provisions to cater for this situation that candidate legal practitioners should be prejudiced.

Furthermore, having admissions placed on hold for such a prolonged period is hindering on the rights of applicants to make advancements in their legal careers, and consequently affecting the ability to be gainfully employed.

This anomaly needs to be addressed as it is prejudicial to a class of new entrants to the legal profession and contributes to the perception of inequality, which may or may not be correct. Equality is a cornerstone of our new democracy. We must ensure that all legal practitioners, including aspiring candidate legal practitioners, are accorded equality of status and opportunity within the profession. The object of the quest for equality is not to seek special dispensation to allow their admission, but rather to ensure that all legal practitioners are treated with dignity and equality no matter where and when they served their articles of clerkship.

A recommendation would be to establish a special motion court for applicants affected by the postponement, in an attempt to speedily deal with the backlog of postponed applications and to reduce the severe prejudice already suffered as a result thereof.

In closing, the moratorium on the hearing of admissions has to be lifted so we have the semblance of uniformity and equality in our division and our profession and in so doing address the unintended consequences of the LPA.

Update on the issue

Be advised that I addressed the concerns detailed in the letter above to the two respective Judge Presidents of the High Courts in this Division. The response received indicated that applications would be fast-tracked on a positive decision made by the Full Bench in Ex Parte: Goosen (GJ) (unreported case no 2018/2137, 25-3-2019) (Sutherland J). The Full Bench pronounced on the issue on 25 March.

On 26 March, I addressed a further letter to the Pretoria Judge President indicating that I was now of the view that the self-imposed prohibition to admissions should be lifted in keeping with the letter of 19 March.

I am pleased to advise that two of our candidate legal practitioners have now been admitted. Be that as it may, I believe that the issue highlighted in the letter is still relevant and should be circulated to raise awareness. I am certain that a number of candidate legal practitioners effected by the Bar to admissions are unaware of the Full Bench decision. The issue has been addressed with the pronouncement on s 115 of the Legal Practice Act 28 of 2014 and the moratorium has subsequently been lifted.

Shaun Hangone, legal practitioner, Johannesburg

Click here for a  copy of the judgment.

– Editor

This article was first published in De Rebus in 2019 (May) DR 4.