On 1 November 2023, the Legal Practice Council (LPC) celebrated five years of its existence since the coming into effect of the Legal Practice Act 28 of 2014. It was an important milestone in the transformation journey of the legal profession. The Black Lawyers Association observed this milestone and held its annual general meeting under the theme, ‘Reflections on the five years of the transformed legal profession: Pondering on the future’. 

An objective assessment based on the presentations made by the speakers revealed that the profession has made significant strides on many fronts notable among them the establishment of the office of the Legal Services Ombud, the adoption of the Legal Sector Code, as well the adoption of the single language policy for the writing of the competency-based examination. We are indeed on course in creating a single unitary legal profession, which is representative of the demographics of our country. 

There are, however, many challenges we still must address. One major challenge is the removal of entry barriers, which continues to plague and besiege Black and female legal practitioners. Those who are lucky to get through find themselves continuously warding off temptations to change careers due to lack of work opportunities. It is an open secret that briefing patterns remain skewed in favour of white male practitioners 30 years into democracy. 

The quarterly labour force survey reported that unemployment in South Africa was at 31,9% in the third quarter of 2023. The number of unemployed young people was at 4,6 million. These statistics include people who have studied law and completed their practical vocational training and actively looking for employment.

Amid these debilitating statistics, we still have to contend with some of the Rules, which are removed from the reality of the South African situation in so far as unemployment is concerned. One of them is r 22.1.5 of the Rules made under the authority of ss 95(1), 95(3) and 109(2) which provides as follows:

 ‘(1) A candidate attorney shall not have any pecuniary interests in the practice and service of an attorney, other than in respect of bona fide remuneration for his or her services as a candidate attorney, and shall not, without prior written consent of the Council, hold or occupy any office in respect of which he or she receives any form of remuneration, directly or indirectly, or engage in any other business other than that of a candidate attorney. 

(2) If any candidate attorney contravenes the provisions of rule 22.1.5.1 the contract concerned shall be void ab initio and service rendered thereunder shall be ineffective unless the court on good cause shown otherwise directs’. 

The rule has been a subject of interpretation in Rensburg v South African Legal Practice Council and related matters [2020] JOL 56977 (GP) and recently in Ex Parte Galela and Another (GP) (unreported case no 2023-063575; 2023-063923, 18-8-2023) (Johnson AJ). What is disconcerting about the two judgments is the interpretation the courts placed on the rule in so far as holding of directorships in companies is concerned. 

The courts interpreted the rule to be an absolute prohibition for a candidate attorney to hold directorship in a company during the period of training. This is, with the greatest of respect, incorrect as it is not supported by the text, context, and purpose of the rule. The rule prohibits the holding of office and receipt of remuneration ‘where holding that office or engaging in that business is likely to interfere with the proper training of the candidate attorney’. This means that if there is no likelihood of the business interfering with the training, the candidate attorney is allowed to hold office and earn remuneration. The requirement for likelihood of interference with the training is a recent addition to the old rule and was brought about for a specific reason: Not to disadvantage young people from continuing with their business while training to become legal practitioners. It was in appreciation of the unique economic situation brought about by the democratic state. Any person familiar with the struggles of young people knows that it is a fact that young people in Africa and the world over engage in business very early in their lives. In South Africa young people are encouraged to register companies and conduct business with the state, which has committed itself to empower them in the fight against poverty, unemployment, and inequality. These are noble objectives, and they should be supported. The legal profession had to adapt to the changing political situation in the country and accommodate aspirant lawyers. It is, therefore, retrogressive to interpret the rule without considering these background facts. To do so is to violate the cardinal rules of interpretation underpinned by the holy trinity of interpretation, namely text, context, and purpose. I, therefore, contend that the rule does not admit of any other interpretation when considered contextually. Any other form of interpretation is in my view devoid of context, strenuous to the text and fails to consider the background facts or circumstances which necessitated the amendment.

In the era of globalisation and modernised technology, one does not need to be personally involved in the administration and management of an enterprise to earn an income. A candidate attorney holding directorship in a construction company does not have to be on the construction site, nor does a daughter of a panel beater who inherits a panel beating business must be in the workshop to manage and administer it. When the rule was adopted in its current wording, it was with a clear appreciation of the reality that the world has changed, and the legal profession should adapt. To hold otherwise as the court did in the two matters is to ignore modern reality and remain trapped in the vestiges of the past. In any case I do not know of any other profession with this kind of a rule.

The second aspect where I find that the court went overboard was in relation to the powers of the LPC to condone non-compliance with the rule. The Legal Practice Act makes it plain that the Council is the only authority to make a determination regarding compliance with the rules regulating the training of candidate attorneys. Where there are suspected irregularities, the Council is required to conduct investigation and determine the impact of the transgression on the quality of the training or whether it constitutes a misconduct. Once satisfied with the explanation provided, Council is bound to issue a letter of no objection to the court advising that it is satisfied that the candidate met all the requirements necessary for admission as a legal practitioner. It is not for the court to go behind the Council and conduct its own investigation during the admission proceedings. 

The failure to disclose directorship falls within the competence of the Council to grant condonation. This is so because not every contravention of the rule should result in the nullification of the practical vocational training period. The LPC as a statutory body is duty bound to ensure justice, fairness, and equity in the application of the Rules and ensure that it gives effect to the realisation of the objectives of the Act, including the facilitation of access to the profession. In this context, I contend that it could never have been the intention of the LPC to visit with nullity any failure or omission by a candidate attorney to disclose directorship or obtain prior written consent. Law reports are replete with cases, which supports the view that not everything done contrary to law should be visited with a nullity more especially where serious inequities might be caused. 

Given the approach adopted by the courts in the two cases, it may be time to reflect on whether it is still necessary to require a High Court to admit a legal practitioner before he or she is enrolled by the LPC to practise his or her trade. What purpose does the admission serve in the realisation of the objectives of the Legal Practice Act? In my view it does not add any value. If anything, it creates an unnecessary tension between the LPC and some judges who see themselves as ultimate authority on the regulation of the profession. The Legal Practice Act envisages a single regulatory authority and vests it in the LPC. Once a legal practitioner satisfies the requirements it should be able to enrol him or her without subjecting him or her to the unpredictability of judges, anxiety and torture associated with admission. After all no other profession goes through this tedious and unnecessary process which at times depends on the idiosyncrasy of the judge.

Maboku Mangena BProc (UniVen) PG Dip Corporate law (Unisa) Taxation Adv (UP) is a legal practitioner, notary, and conveyancer at Maboku Mangena Attorneys Inc in Polokwane.

This article was first published in De Rebus in 2024 (May) DR 55.