From the date of promulgation of the Legal Practice Act, No 28 of 2014 (LPA) immense confusion within the legal fraternity arose, especially for our aspiring new legal practitioners in terms of the new Act. The situation arose that our colleagues had studied for a specific profession for years, and are now left out to dry with the uncertainty as to which Act; the Legal Practice Act and / or the Attorneys Act is now applicable on them, and therefor which requirements they are to satisfy to be admitted as legal practitioners.
In terms of the above stated, aspiring legal practitioners turned to the LPA, more specifically Section 115, which states, “Any person whom, immediately before the date referred to in Section 120(4) [being 1 November 218], was entitled to be admitted and enrolled as an advocate, attorney, conveyancer or notary is, after that date, entitled to be admitted and enrolled as such in terms of this Act.” It however still did not deliver the sought after clarity, as it left the question of who was now entitled to be admitted immediately before 1 November 2018, given the Attorneys Act, and the Admission of Advocates Act has been repealed, therefor the parties were left with no other choice than to test the process by means of applying to Court, and to tempt their fate, to be enrolled as legal practitioners and / or advocates, and to be left in the mercy of the High Court.
In the matter of Reeva Joy Alves and Eight Similar Cases v Legal Practice Council [2019] ZAWCHC 96, the High Court of the Western Cape Division was left with the exact dilemma as mentioned above, in which terms Baartman J and Hlophe JP, heard unopposed admission applications in open court. The situation arose that nine admission applications on the roll, which was of the similar nature, were all opposed by the Legal Practice Council, therefor they would not be enrolled on the day of their application, as their applications were not merely applications for admissions as legal practitioners, and more specifically as newly admitted Legal Practitioners, but rather it was applications for their names to be removed from the roll of Attorneys and to be enrolled by the Legal Practice Council as Advocates of the High Court.
The crux of the case however, was the fact that the parties, whom were all enrolled and practicing as Attorneys, all relied on Section 115 of the LPA to be enrolled as Advocates of the High Court. All the Applicants successfully attended to the required practical training as candidate attorneys, passed their board exams, and found to be fit and proper by the Honourable Court, and therefore it was contested that they were entitled to rely on Section 115 of the LPA, read together with the recent decisions of Ex Parte Goosen 2019 (3) SA 489 and Ex Parte Bakkes 2019 (2) SA 486. The Respondent however contested that the conversion mechanism in Section 32 of the LPA [which allows persons to convert their enrollment from Attorneys to Advocates] should be used by the Applicants and not Section 115 of the LPA, based on the fact that Section 115 of the LPA only applies to persons and / or applicants whom have never been admitted as Legal Practitioners before.
In light of the arguments held before Court, Baartman J and Hlophe JP drew a line in the sand and declared that if it was to be the fact that the Respondents` argument was supported by the Court, it would burden persons whom apply to Court to be enrolled as Legal Practitioners and more so, Advocates of the High Court, but who are already practicing as Attorneys, would cause the unwanted effect, that they would be left in a worse situation than that of those persons whom have stepped out of University afresh and would simply require to be admitted and enrolled as advocates, as they would not be required to have satisfied both the requirements of the previous Attorneys Act as well as the new LPA.
The Court therefor interpreted Section 115 of the LPA in light of the Bill of Rights, and there for granted the Applicants, to be enrolled as Advocates of the High Court; as the Court argued that the legislature surely was not of the intention to hinder trained and experienced practitioners to be prevented to practice the profession and advise the public properly versus to allow persons whom have not been trained, nor achieved any experience in the profession to be unleashed on the public.
Compiled by: Ariko Stoltz (LL. B); source: https://www.lexisnexis.co.za/
LEXISNEXIS SUMMARY:
Professions :: legal practice
Alves and others v Legal Practice Council
[2019] JOL 45259 (WCC)________________________________________
Case Number: 7528 / 19; 6990 / 19; 6541 / 19; 6661 / 19; 6900 /
Judgment Date: 03 / 07 / 2019
Country: South Africa
Jurisdiction: High Court
Division: Western Cape, Cape Town
Bench: J Hlophe JP; ED Baartman J
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Keywords:
Legal Practice – Legal practitioners – Conversion of enrolment – Attorneys to advocates
Mini Summary:
In all the matters before the court, the applicants wanted to have their names removed from the roll of attorneys and be enrolled as advocates. The central issue for determination was whether the applicants, all being admitted legal practitioners and enrolled as attorneys, were entitled to rely on section 115 of the Legal Practice Act 28 of 2014 to be enrolled by the Legal Practice Council as advocates of the High Court. All of them had successfully undertaken practical training as candidate attorneys, passed board examinations, and been found to be fit and proper by the High Court.
Opposing the applications, the respondent submitted that the conversion mechanism in section 32 of the Act should be utilised by the applicants and not section 115, because section 115 only applies to people or applicants who have never been admitted as legal practitioners before.
Held that the applicants could not apply for conversion under section 32 because they were required to undergo a specialised training course in advocacy and there was no course available in Cape Town. Secondly, not all of the applicants had rights of appearance in the High Court as required by section 25(3).
Section 115 should be interpreted to mean that persons who qualified for admission and enrolment under the old Act prior to 1 November 2018 are entitled to be admitted and enrolled as advocates. In that regard, the court stated that it is imperative to interpret legislation in a sensible, business-like manner and take into account both the text and the context.
The court granted an order admitting the applicants as legal practitioners and ordering the respondent to enrol them as advocates.