Recommendations to the Minister October 2017: Recommendation 6
Recommendations to the Minister by the National Forum
Section 97(1)(a)(vi): The National Forum must make recommendations to the Minister on the right of appearance of a candidate Legal Practitioner in court or any other institution.
Since the right of appearance of candidate attorneys is comprehensively dealt with in s25(5) but no similar provision relating to pupils (candidate legal practitioners who wish to become advocates) is contained in the Act, the National Forum has proposed the following amendment to the Act:
“(5)(a) A pupil is entitled to appear –
(i) in any court, other than the High Court, the Supreme Court of Appeal or the Constitutional Court; and
(ii) before any board, tribunal or similar institution on behalf of any person,
subject to the approval of the person under whose supervision he or she is undergoing his or her practical vocational training.
(b) A pupil shall be entitled to be remunerated for any appearance in terms of paragraph (a) as provided for in terms of the rules.”
Alternatively, if the amendment of s25(5) cannot be made, the draft Regulation contained in Appendix “F” is recommended for consideration and approval. However, in order for the Regulation to become effective, an amendment of the Act will still be required, because the Regulations cannot confer rights not provided for in the principal Act.
There is currently a divergence of opinion on the issue of practical vocational training to be completed by candidate legal practitioners. Please refer to paragraph 5 above. If the GCB’s proposal of a 6 month training period for pupils is accepted, they should not be allowed to appear in the High Court during the 6 month period. However, if the training period for pupils is going to be longer, a pupil should be allowed to appear in the High Court after 6 months practical vocational training, subject to the approval of the person under whose supervision he or she is undergoing his or her practical vocational training.
The amendment of s25 set out above, alternatively the draft Regulation contained in Appendix “F”, is necessary to ensure statutory recognition of the right of pupils to appear in the lower courts and before tribunals on behalf of other persons and to earn fees, in order that:
1. the position of pupils can be regularised in relation to that of candidate attorneys;
2. the pupil can gain relevant experience and enhance his/her skills;
3. the pupil can earn fees whilst appearing in the lower courts and before tribunals, which will enhance the ability of LLB graduates to enter into the profession and will also enable the Council to standardise the periods of practical vocational training of candidate legal practitioners and pupils as far as practicable.
The principal Act currently only provides for the right of appearance of candidate attorneys, in s25(5). Although the principal Act requires the National Forum to make recommendations to the Minister regarding the right of appearance of candidate legal practitioners in court or any other institution (s97(1)(a)(vi) of the Act) and for the Council (or the National Forum, in terms of the Legal Practice Amendment Bill 2017) to provide for the remuneration of candidate legal practitioners (s27(2) read with s95(1)(o) of the principal Act), the principal Act does not provide for pupils’ right of appearance.
The omission in the principal Act cannot be remedied in the Regulations or the Rules by the Council; the Regulations and the Rules cannot confer rights not provided for in the Act.
If the recommendation is accepted, it is proposed that s25(5) of the Act should be amended as recommended, alternatively that the Minister should issue the Regulation contained in Appendix “F”, but the latter will still require an amendment of the Act for the reason set out in the previous paragraph. The procedural requirements for the issuing of Regulations are set out in s94(2) & (3) and s109(1). In order to enable pupils to appear in court and to earn fees, which will also enable the Council to standardise the periods of practical vocational training of candidate legal practitioners and pupils, it is essential that the amendment or the Regulation should become effective before s120(4) comes into operation.