The old is gone embrace the new

August 1st, 2021
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The coming into effect of the Legal Practice Act 28 of 2014 (LPA) has brought along necessary changes in governing legal practitioners and harmonising the profession. However, the scope of this article is not to discuss such changes in detail, except those brought about by s 25(3) of the LPA. Prior to discussing these changes, we turn and examine the extent and scope of legal practitioner’s right to appear in the superior courts.

Such a right was found in the Right of Appearance in Courts Act 62 of 1995, now repealed. Section 4(2) of the Right of Appearance in Courts Act, stipulated that: ‘An application by an attorney to appear in the Supreme Court, shall be in writing, shall be signed by him or her and shall be accompanied by –

(a) documentary proof that he or she has satisfied all the requirements for –

(i) the degree baccalaureus legum of any university in the Republic; or

(ii) a degree of any university in a designated country in respect of which a university in the Republic with a faculty of law has certified that the syllabus and standard of instruction are at least equal to those required for the degree baccalaureus legum of a university in the Republic; or

(iii) a degree which is the equivalent of the baccalaureus legum degree and in respect of which an exemption contemplated in section 2 of the Recognition of Foreign Legal Qualifications and Practice Act [114 of 1993], has been granted; or

(b) a certificate issued by the secretary of the law society of which the applicant is a member, to the effect that the applicant has been practicing as an attorney, or has been performing community service as an attorney at any law clinic, for a continuous period of not less than three years; and

(c) a certificate signed by the secretary of the said law society to the effect that no proceedings to strike the applicant’s name off the roll of attorneys, or to suspend him or her from practice as an attorney, have been instituted by that law society.

(2) If the registrar is satisfied that an application referred to in subsection (1) complies with the provisions of this Act, he or she shall issue a certificate to the effect that the applicant has the right of appearance in Supreme Court.’

Section 25(3) of the LPA, provides a similar procedure, for attorneys to enjoy the right to appear in the superior courts. However, it is important to note the new dispensation created under s 25(3) and r 20.6 of the Rules made under the authority of ss 95(1), 95(3) and 109(2) of the LPA, have extended the right to all superior courts, including the Supreme Court of Appeal, and the Constitutional Court.

Whereas s 4(2) of the Right of Appearance in Courts Act limited this right to the division in which the attorney was admitted. Section 4(2) must be read with s 20 of the repealed Attorneys Act 53 of 1979, for a proper interpretation of s 4(2) (see ABSA Bank Ltd v Barinor New Business Venture (Pty) Ltd 2011 (6) SA 225 (WCC) and Liberty Group Ltd v Singh and Another 2012 (5) SA 526 (KZD)). In our opinion the court has correctly interpreted s 4(2) by reading in s 20 of the Attorneys Act, this interpretation enables the attorney to discharge the functions of an advocate to sign pleadings and to also appear in any of the divisions of the High Court in the Republic, Supreme Court of Appeal and the Apex Court.

Interpretation of r 18(1) of the Uniform Rules of Court

Rule 18(1) clearly requires that pleadings, if not signed by a party instituting legal proceedings or defending personally, be signed by an advocate in tandem with an attorney with a right of appearance in the High Court. In order for attorneys to be able to sign pleadings, inter alia, a combined summons they must first be issued a certificate by the registrar qualifying them as an attorney with the right of appearance in the High Court.

In our opinion, the proper reading of r 18(1) must be read in conjunction with s 25(3) of the LPA, instead of the repealed s 4(2) of the Right of Appearance in Courts Act. The erroneous use of a repealed Act by legal practitioners when signing pleadings constitutes an irregularity and/or is an irregular step, which might attract an application in terms of r 30 of the Uniform Rules and should such application be brought the only remedy for the defaulting litigant is to apply for condonation in terms of r 27(3) of the Uniform Rules (see Khumalo and Others v Nedbank (GP) (unreported case no 37984/2017, 14-12-2017) (Kubushi J)).

More often than not, defaulting litigants will rely on r 18(1), which makes reference to s 4(2) of the repealed Act in asserting the right to sign pleadings. We contend that such reliance on the section mentioned in the rule is insufficient when it is not read in tandem with s 20 of the repealed Attorneys Act. Therefore, in this new dispensation of the LPA it becomes a necessity rather than an option to assert a right to sign pleadings on s 25(3) read with r 20.6.

It is a general rule that the summons and particulars of claim issued must cite the attorney signing the pleadings that he or she has a right of appearance in the High Court, in accordance with r 18(1). The use and interpretation of this rule constitutes an irregularity as it is continuously cited as primordial law, which has no effect in the new dispensation.

Conclusion

The crux of our contention is not in the existential right of the attorneys to appear in any division and/or SCA and the Constitutional Court, but the use of the old certificate to sign pleadings by an attorney asserting such right from the repealed s 4(2) of the Right of Appearance in Courts Act. We contend that reference to this section renders the pleading irregular, when properly construed such a reference is based on the certificate granted in terms of the repealed Act. Further, r 18(1) gives reference specifically to s 4(2), which is not enough when not interpreted with s 20 of the repealed Attorneys Act that extends the right of appearance to sign pleadings in other divisions of the High Court.

In conclusion, if our interpretation of s 25(3) of the LPA is correct, that the use of the old certificate, with reliance on repealed legislation renders the pleadings and its summons irregular (irregular step). We propose an amendment of r 18(1) in as far as it references s 4(2) of the Right of Appearance in Courts Act and replaces it with s 25(3) of the LPA.

Kayaletu Tshiki LLB (UFH) LLM (Sussex University, UK) is a legal practitioner and Lindokuhle Ndinisa LLB (UFH) Cert in Immigration and Refugee Law (LEAD) is a candidate legal practitioner at Tshiki and Associates Inc in East London.

This article was first published in De Rebus in 2021 (Aug) DR 10.

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