The writers believe that Section 25(3) of the Act perpetuates a harmful historical stereotype that reduces attorneys to mere office administrators. (Getty Images)
Karl Klare in 1998 in his seminal work Legal Culture and Transformative Constitutionalism stated that the challenge with South African legal culture is that it is structurally conservative and gives interpretative legitimacy to the Roman-Dutch common-law. To break away from this what is required is transformative constitutionalism.
Former Chief Justice Langa viewed transformative constitutionalism as an ongoing pursuit of legal change. At first sight, it might be surprising to find legislation governing the legal profession to be anti-constitutional as it is expected that lawyers are the ones who know the law and would challenge unconstitutional laws, but, on the backdrop of a conservative legal culture “it’s always been this way” mentality and attitude can be expected. Guided by transformative constitutionalism and dignity-based jurisprudence, section 25(3) of the Legal Practice Act [LPA] is an example of retention of an unconstitutional colonial remnant of the South African legal profession.
Before delving deeper into the provision, a brief history of the legal profession is necessary. The work of L Wildenboer in The Origins of the Division of the Legal Profession in South Africa is informative. The legal profession had its nascent years in the Roman Republic. An advocate was trained in rhetoric and other skills of persuasion, consequently, he was appointed to argue a case before a judge and expected to manipulate the feelings and prejudices of the judges. Attorney duties were performed by “men of low degree”. Such a view was continued and developed in Roman-Dutch law. In Holland, an advocate was viewed as more important than an attorney, and people viewed as being low-class were barred from becoming advocates. The rationale was to maintain the respect due to judges and prevent judges from arguing with men of low class. In addition, for one to be an advocate they had to obtain a doctorate in law at a Holland university. The above position was transplanted in the Cape. To show the low status of attorneys, it was a rule that while in court attorneys were to remove their hats, while advocates were allowed to keep their hats on in court.
Although over the years there were some changes, the view that advocates were court specialists and attorneys were office administrators persisted. It was until 1995 through section 4(2)(b) of the Right of Appearance in Court Act that attorneys were allowed to appear in superior courts. This provision required the attorney to apply to the registrar for a certificate for right of appearance, and this certificate was issued if the secretary of the law society, which the attorney was a member of, attested that the attorney had been practising as an attorney for at least three years. This Act was repealed by the Legal Practice Act 28 of 2014([LPA). The present section 25(3) of the LPA is substantially identical to section 4(2)(b) of the repealed Right of Appearance Act. It is noteworthy that the original draft Legal Practice Bill (B20-2012) of May 2012 had a section 25(2) which provided every advocate and attorney the right to appear in any court, without need for the minimum period of practice or application to the registrar and consequent certificate. But, in 2013 the portfolio committee changed this draft provision and inserted the present one. The reason for the change was that the focus of training for attorneys differs from that of advocates. Advocates focus on court work and advocacy, thus it is appropriate to retain the framework of the repealed Right of Appearance Act. Such “justification” is shocking to a candidate attorney who is undergoing training in a law clinic or legal aid centre because they appear periodically in magistrates’ courts.
The differentiation goes further and states that for candidate attorneys to appear in regional magistrates’ courts they must have undergone at least one year of practical vocational training while their counterparts, the pupils, may appear in regional magistrates’ courts after at least six months of practical vocational training. Section 25(3) promotes the Roman-Dutch law view on the distinction between attorneys and advocates. It is now possible for an advocate (fidelity fund advocates) immediately after being admitted to receive instructions from the public and appear in any superior court while a newly admitted attorney does not have such luxury. Is this distinction constitutionally rational?
Section 25(1) of LPA confers upon all legal practitioners, whether admitted as attorneys or advocates, the right to practise throughout the Republic. But this entitlement afforded to attorneys is circumscribed by section 25(3). Section 3 of the LPA captures the purpose of the Act, which is to establish a “legislative framework for the transformation and restructuring of the legal profession that embraces the values underpinning the Constitution and ensures that “the rule of law is upheld” and to “broaden access to justice”. At the heart of the transformative agenda of the Act lies the elimination of barriers that impede the full participation of all legal practitioners in all forms of work, which is a decisive departure from how things were in the past. Our Constitution expressly provides a robust and substantive equality right under section 9 which embraces freedom from unfair discrimination. The objective of attaining this equality necessitates dismantling systemic and structural inequality, in order to usher in economic parity as well as affirm the diverse spectrum of human identities and capabilities.
Deputy chief justice Dikgang Moseneke, in Minister of Finance v Van Heerden, highlighted the importance of attaining equality which he argued goes to the bedrock of our constitutional architecture and reinforces the enduring principles of democracy and human rights upon which our nation is founded. This imperative demands a more just and inclusive society. According to Moseneke, substantive equality recognises that in addition to uneven race relations, class divisions and gender inequality, there exist other levels and forms of social differentiation and systemic under-privilege scarring every aspect of society, and all these must be dismantled and new emergent patterns of differentiation prevented.
It is clear that section 25(3) obstructs the constitutional task of achieving equality within the legal profession because it perpetuates and sustains historical patterns of disadvantage and discrimination against attorneys, and hinders the transformative project by upholding past stereotypes of attorneys as inherently incompetent to appear in superior courts. In Minister of Finance v Van Heerden, the constitutional court held that equality before the law rings hollow if proactive measures to progressively eliminate “socially constructed barriers to equality and to root out systematic or institutionalised under-privilege” are not pursued.
The equality right, in section 9(1) of the Constitution, serves as a safeguard against unjust or arbitrary discrimination on any basis by the state. This provision guarantees everyone equal treatment by our laws and the courts, free from any form of favouritism or discrimination. We argue that section 25(3) of the LPA violates section 9(1) of the Constitution. Violating section 9(1) cannot be justified by the higher standards of reasonableness and proportionality, as delineated in section 36 of the Constitution. In Prinsloo v Van der Linde Justice Laurie Ackermann stressed that the actions of the state must invariably exhibit rationality and measures “manifesting ‘naked preferences’ serve no legitimate governmental purpose”. Consequently they undermine the rule of law and the foundational principles of a constitutional state.
The constitutional court jurisprudence in Harksen v Lane is instructive in determining whether section 25(3) of the LPA unfairly discriminates against attorneys. The constitutional court formulated the two-part test to determine whether section 9(1) of the Constitution was violated: (i) Does the provision differentiate between people or categories of people? (ii) If so, does the differentiation bear a rational connection to a legitimate government purpose? If it does not, then there is a violation of section 9(1). Section 25(3) distinguishes between newly qualified attorneys and advocates by restricting attorneys’ right to appear in superior courts unless they have practised for three consecutive years.
Regarding the second part of the test, the legislature must demonstrate that the purpose of section 25(3) is not arbitrary nor irrational. The rationale behind the distinction made by section 25(3) seems to suggest that attorneys affected by it lack the necessary skills for handling litigation in superior courts and therefore need additional “training”. It is crucial to emphasise that the LPA does not explicitly or implicitly mandate such attorneys to participate in litigation during the three years to enhance their skills to the level of newly admitted advocates, so doing non-litigious work suffices for satisfying section 25(3). This provision produces illogical and absurd outcomes as it bars attorneys without three years of practice from appearing in the high court, supreme court of appeal and the constitutional court, yet it does not prevent them from appearing in courts of equal status to the high court, such as the electoral court, the land claims court, and the labour court, as well as in appeal courts such as the labour appeal court and competition appeal court. Thus section 25(3) serves no legitimate purpose; instead it unfairly casts doubt on the competence of attorneys to render certain court work. Moreover, it unfairly tilts the playing field in favour of advocates and echoes the oppressive position attorneys were mandated to accept before the era of democracy. The admission of an attorney to practise under section 26 of the LPA serves as a clear indication to the public that the admitted attorney possesses the necessary training and qualifications to practise law following the standards set by the legal profession.
Section 25(3) is reminiscent of the “separate but equal” justification used during apartheid. For instance in 1960 in S v Pitje the appellate division, now the supreme court of appeal, held that a black candidate attorney who had sat at a table in court reserved for white legal practitioners was in contempt of court. The court held that the black practitioner could as well have sat in a place allocated to him and that would not have hampered him in carrying out his duties. In Minister of Home Affairs v Fourie (Lesbian and Gay Equality Project), the constitutional court held that the separate but equal justification in our constitutional democracy is untenable. According to the court, our constitutional jurisprudence is context-sensitive; it recognises that a neutral distinction could affect a person’s dignity and sense of self-worth. The crucial yardstick is “whether human dignity is enhanced or diminished and the achievement of equality is promoted or undermined by the measure concerned. Differential treatment in itself does not necessarily violate the dignity of those affected. It is when separation implies repudiation, connotes distaste or inferiority and perpetuates a caste-like status that it becomes constitutionally invidious.”
The context reveals that attorneys have been cast as pariahs of the legal profession, and the legislature was reasonably aware of such a history. The provision diminishes human dignity as more is required for attorneys regardless of their practical experience compared to their counterparts. This differentiation connotes inferiority and undermines the achievement of equality mandated by the Constitution. Attorneys must satisfy certain criteria to appear in the high court, supreme court of appeal and the constitutional court but the same does not apply to advocates.
Section 25(3) also violates section 22 of the Constitution, which guarantees attorneys the right to choose their profession, thereby constraining their freedom to undertake in their chosen livelihood. In the case of Esau v Minister of Co-Operative Governance and Traditional Affairs, the supreme court of appeal determined that the right to practise one’s profession is intimately linked to section 10, the right to human dignity, because one’s work forms a crucial part of their identity and dignity. Consequently, section 25(3) also undermines the dignity of attorneys.
Moreover, despite the egregious prevalence of poverty and unemployment in South Africa, section 25(3) has the inadvertent effect of exacerbating the legal costs, as affected attorneys are compelled to brief advocates when they are faced with cases that require litigation cases in superior courts, thereby resulting in additional costs that disproportionately affect already vulnerable individuals. This directly undermines the objective of the LPA to broaden access to legal services. Removing section 25(3) would promote access to justice and reduce legal costs. In a scathing judgment, the constitutional court in Camps Bay Ratepayers’ and Residents’ Association v Harrison expressed deep concern about the significant rise in counsel fees in recent years. Increasing the number of legal practitioners practising in South Africa would provide the public with a wider range of professionals to seek legal assistance from, thereby ensuring that legal fees are kept at competitive rates.
Based on the foregoing, it is time to remove section 25(3) of the LPA because it is unconstitutional. This provision adversely affects the human dignity of attorneys and undermines the right to equality and the right to pursue a profession. It perpetuates the historical stereotype that attorneys are office administrators. Proverbially, it is time for attorneys, just like advocates, to leave their hats on in court. It is time for attorneys to sit at the same table as advocates. Separate but equal is against transformative constitutionalism.
Sello Ivan Phahle is an LLM candidate at the University of the Witwatersrand, a legal adviser and an analyst. Thabo Mhlanga is an independent legal analyst.