Rule 17.6.3 of the Rules of the Legal Practice Act declared unconstitutional

July 1st, 2022
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In Ex Parte Lindumusa Hopewell Makamu (unreported case no 304/2021), the applicant brought an ex parte application for his admission as a legal practitioner before the Mpumalanga Division of the High Court. In support of the application, the applicant had annexed his academic record as proof that he had satisfied the requirements of an LLB degree as required by s 26 of the Legal Practice Act 28 of 2014 (the LPA). The court was not satisfied that the applicant had met the requirements considering r 17.6.3 of the Rules made under the authority of ss 95(1), 95(3) and 109(2) of the LPA. The r 17.6.3 reads as follows:

‘17.6. Copies of the following documents must be attached to the founding affidavit of the applicant, whether for admission as an attorney or as an advocate, and must be certified as being true copies of the originals by a notary or by a commissioner of oaths –

17.6.3. degree certificate or certificates of the applicant.’

The applicant had not annexed a degree certificate, or the certificates as required by the Rules because the university had withheld the applicant’s degree certificate because he owed the university outstanding fees.

The applicant filed substantive heads of arguments and submitted that the court should grant the application in that the rule did not apply to him because he was being admitted in terms of the previous regime namely, Admission of Advocates Act 74 of 1964, whereby there was no rule requiring the degree certificate. The substantive heads of arguments prompted the court to invite further submissions from the applicant and other interested parties such as the Legal Practice Council and the Minister of Justice and Correctional Services.

The invitation directed all interested parties to make submissions on the following questions:

‘Does the provision in Rule 7.6.3 place an additional duty on the applicant which are not one of the requirements in terms of section 26(1) of the Act?

If it does, is Rule 17.6.3 not ultra vires?

Is the provision of Rule 17.6.3 not unconstitutional in that it offends the right to equality, dignity, and profession in the Bill of Rights?

Does the fact that the applicant is indebted to the university without any arrangements to pay his indebtedness [leave the applicant] open to the finding that the applicant is not fit and proper to be admitted and enrolled as a legal practitioner as contemplated in terms of section 24(2)(c) of the Act?’

The applicant and interested parties submitted their heads of argument.

After the court had perused the written heads of argument submitted by the applicant, and other parties, the court declared r 17(6)(3) of the Rules inconsistent with the Constitution to the extent that it did not afford the court a discretion to admit a legal practitioner under the LPA in the absence of a copy of their degree certificate.

The court made its order based on the following reasons.

In para 56 the court held: ‘Rule 17.6.3 goes beyond what section 26(1)(a) requires. Notwithstanding, the Minister was empowered to make rules by s 95(k) and the Minister exercised [his] powers, therefore, the rules are not ultra vires.

In para 57, the court held that in its view r 17.6.3 offends the spirit, and purport and objects of the Bill of Rights, the rule makes it impossible for applicants who seeks admission or enrolment as legal practitioners to make an application for admission without a degree certificate even though they may have complied with the provisions of s 26(1)(a). It unfairly discriminates against a person who may not be able to obtain their degree because they still owe their university money, therefore, it violates such applicants right to equality, human dignity and freedom of trade, occupation and profession.

The court also relied on Ex parte Feetham 1954 (2) SA 468 (N), in which Holmes J held ‘the relevant qualification should be the applicant’s passing of the LLB examination, and not the extraneous act of the university in conferring the degree’ and Ex Parte Tlotlego (GJ) (unreported case no 2017/34672, 8-12-2017) (Victor J), where it was held ‘the courts become a role player/gatekeeper in the debtor/creditor relationship between student and University.’ The executive through r 17.6.3 became the role player and gatekeeper.

Even though the court agreed that the rule goes beyond what is required by s 26(1)(a) and that it is inconsistent with the Constitution, it still questioned whether the applicant was fit and proper to be admitted. In para 59 the court asked whether a person who owes a debt to a university (as in this instance) and who does not show that the debt is going to be purged and how they intend to purge the debt, is a fit and proper person for admission in that is such a person of complete honesty, reliability and integrity? The court answered no. It went further to state that in the absence of proof that the debt is going to be paid and how it is going to be paid, the high bar for integrity and honesty that is expected from the legal practitioner is not cleared.

Conclusion

I disagree with the court in this instance, the question of honesty and integrity cannot be placed with such a high bar. The court is worried that the applicant after admission will continue to practice without the LLB degree certificate and never settle the university fees. I submit that this is not the concern of the court or any court as the debtors have remedies to recover money that is due to them, and the court should not concern itself with this aspect.

The court declared r 17.6.3 of the Rules to be unconstitutional for the purpose of admission.

Lindumusa Makamu BA LLB (Univen) is a legal practitioner at Makamu Law Chambers in Mbombela. Mr Makamu was the applicant in the above matter.

This article was first published in De Rebus in 2022 (July) DR 39.

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