In commenting on theLegal Practice Amendment Bill [B11-2017] the Law Society of South Africa (LSSA) has called for the playing fields to be levelled between attorneys and advocates as regards right of appearance in the higher courts.
‘One of the objectives of the Legal Practice Act 28 of 2014 (LPA) is to bring about a transformed and unified legal profession that will enhance access to justice and, on the principle of equality and transformation, no legal practitioner should be excluded from appearing in any court in the country to argue any case,’ says the LSSA in its submissions on the Bill.
Although the issue of appearance in the Higher Courts is not dealt with in the Bill, the LSSA is of the view that, for completeness sake, the Bill should also address the disparity between the position of attorneys and advocates.
Section 25(2) of the Legal Practice Act, 2014 (LPA) provides that a legal practitioner, whether an advocate or an attorney, has the right to appear in any court or before any board, tribunal or similar institution.
The LSSA points out, however, that the right of attorneys to appear in the High Court, the Supreme Court of Appeal or the Constitutional Court is restricted. In terms of s 25(3) of the LPA, attorneys wishing to appear in these courts have to apply to the registrar for a certificate of right of appearance, which will be issued if the attorney:
- has been practising for a continuous period of not less than 3 years (the period may be reduced if the attorney has undergone a trial advocacy training programme) and is in possession of an LLB degree; (s 25(3)(a)); or
- has gained appropriate relevant experience (s 25(3)(b)).
The LSSA notes that, in terms of the Right of Appearance in Courts Act, 62 of 1995 (which will be repealed once the LPA becomes fully operational), an attorney is entitled to acquire the right to appear in the High Court, the Supreme Court of Appeal and the Constitutional Court if she or he has been practising as an attorney for a continuous period of at least 3 years or is in possession of an LLB degree or a foreign degree equivalent to an LLB degree (s 4(1)(a) and (b)).
The LSSA has stressed that, in future, it will be more onerous for many attorneys to acquire a right of appearances certificate than at present, since, instead of years of practice or an LLB degree, the test will now be years of practice and an LLB degree.
Conversely, advocates will be entitled to appear in any court, including the High Court, the Supreme Court of Appeal and the Constitutional Court, without having to meet the requirements set out in s 25(3).
‘The LSSA believes that it was never the intention of the legislature to exclude qualified legal practitioners from appearing in any court in the country. All legal practitioners now have a common law degree to complete and, should the LSSA’s proposal as regards common practical vocational training (PVT) find favour, will have a common PVT programme for admission, with all the best training practises incorporated into this training,’ says the LSSA in it submission.
There is a divergence of views between attorneys and advocates as regards PVT at the National forum for the Legal Profession (NF). It is understood that the NF will put forward various models to the Justice Minister Michael Masutha for him to decide on the PVT model. In its submissions on the Bill, the LSSA states that, should the LSSA’s proposals regarding PVT not be accepted, trial advocacy could be a compulsory subject for the training of attorneys.
The LSSA has also asked that attorneys in possession of law degrees other than the LLB degree, who have been issued with right of appearance certificates under the Right of Appearance in Courts Act, should retain their existing rights, as the LPA does not address this as it stands.
In view of the above, the LSSA has recommended that the words following ‘institution’ in s 25(2) of the LPA and the whole of s 25(3) and (4) be deleted.