Which Act should legal practitioners rely on when applying for admission to practice on or after the commencement of the LPA?

February 1st, 2021

Donaldson v Legal Practice Council (GJ) (unreported case no 15295/2020, 5-11-2020) (Lamont J (Meyer J and Harrison AJ concurring))

In the Donaldson matter, the Gauteng Local Division of the High Court in Johannesburg was approached by the applicant (Donaldson) seeking to obtain that the defendant (the Legal Practice Council (LPC)) enrol him as an attorney, after the LPC declined to approve his application seeking a conversion of his status from advocate to attorney on the basis that he had not completed a Practice Management Training course for legal practitioners prior to making his application.

The applicant was admitted on 12 October 2012 in the Western Cape Division of the High Court in Cape Town and practiced as such from 2012 to early 2013. He then proceeded to take up a position on the non-practising roll as the national litigation manager of the Invictus Group. He held this position for approximately three years. On 2 April 2015, the applicant applied to have his name removed from the roll of attorneys and applied to be admitted as an advocate of the High Court. He was duly admitted as such on 6 August 2015 and he became a member of the National Bar Association. On 11 May 2020, the applicant applied to the LPC seeking the conversion of his status from an advocate to attorney.

The court, per Lamont J, said the respondent was of the view that there was nothing in the Legal Practice Act 28 of 2014 (LPA) that entitled a practitioner to be exempted from completing the course, which in its view was compulsory to complete. The applicant’s application in all other respects demonstrated his compliance with the LPA. The court added that the issues raised and which are to be demonstrated by that court were defined by the Judge President when he established the Full Court to hear the matter, included:

  • Whether legal practitioners who apply for conversion from advocate to attorney and were admitted as attorneys and advocates prior to the promulgation of the LPA are exempt from completing the peremptory legal practice management course.
  • What the legislature intended by the use of the wording in r read with s 85(1)(b) of the LPA concerning the requirement to complete a practice management course insofar as an application for conversion from advocate to attorney is concerned.

The High Court said the LPC is entitled, by reason of the provisions of the LPA, to make rules. Section 95 of the LPA provides:

95. Rules

(1) The Council may, and where required in the circumstances, must by publication in the Gazette, make rules relating to –

(z) the circumstances in which a legal practitioner can apply for the conversion of his or her enrolment and the requirements that must be complied with as contemplated in section 32(3);

(zL) the legal practice management course to be completed by first time attorneys and advocates referred to in section 34(2)(b) and the fee payable in respect thereof as contemplated in section 85(1)(b).’

The court said that s 95(1)(z) and (zL) of the LPA expressly recognise that the practice management course is a course that has to be completed by first-time attorneys and advocates referred to in s 34(2)(b). To produce proof of competence as required at the time of application. The court added that legal practitioners who are not first-time attorneys and advocates contemplated in s 34(2)(a)(ii) of the LPA, who seek enrolment or conversion are excused from providing proof.

The High Court pointed out that the applicant who was admitted as an attorney on 12 December 2012 and who had converted to being an advocate on 6 August 2015 remained entitled to be admitted as an attorney notwithstanding that the LPA, which came into operation on 1 November 2018, replaced the Attorneys Act 53 of 1979. The High Court added that s 115 of the LPA provides that any person who immediately before the date referred to in s 120(4) was entitled to be admitted and enrolled as such in terms of the LPA. The court said that the applicant, notwithstanding the fact that he was admitted and practised as an attorney at the time the Attorneys Act was of application, is to be treated as if he had been admitted and practiced at the time the LPA was of application. The court held that accordingly the applicant did not seek in his conversion to be admitted as an attorney for the first time.

The High Court referred to the matter of Ex Parte Goosen and Others 2019 (3) SA 489 (GJ) where it was a held that any person who applies for admission to practice on or after the commencement of the LPA is entitled to rely on the provisions of the Attorneys Act or the Admission of Advocates Act 74 of 1964 as the case may be. The court held that in the present matter the applicant was a person who previously had practised as an attorney and so was not a first-time legal practitioner. The court pointed out that the applicant did not need to attend a legal practice management course and was entitled to be admitted as all other requirements were duly met.

The court made the following order:

‘1. The respondent is directed to approve the applicant’s application for conversion from advocate to attorney (legal practitioner) dated 11 May 2020 in accordance with the applicant form provided by the respondent to it.

2. Each party is to pay its own costs’.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2021 (Jan/Feb) DR 36.

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