A landmark judgment by the Gauteng High Court abolishes the three-year waiting period for attorneys before they may appear in the country's superior courts.
Image: File
In a groundbreaking judgment for newly admitted attorneys, the Gauteng High Court declared unconstitutional the three-year waiting period that prevents attorneys from appearing in higher courts.
Judge Norman Davis, on Friday, found that the section of the Legal Practice Act (LPA) unfairly singled out attorneys as advocates admitted at the same time, as attorneys do not have a three-year mandatory waiting period before they can appear in the high courts, the Supreme Court of Appeal and the Constitutional Court.
The victory for newly admitted attorneys was sparked by attorney Kgomotso Ramalepe and Marweshe Attorneys. The legal challenge was brought against the Minister of Justice, the Legal Practice Council and the Black Lawyers Association.
Ramalepe was admitted by the court as an attorney in June last year, and she decided to challenge the law as she was barred from appearing in the higher courts due to the restrictions of the Act.
The LPA governs the admission of all legal practitioners. Judge Davis pointed out that historically, attorneys did not have the right of appearance in the country’s superior courts, as this was reserved for advocates.
The law in this regard was later amended, but the three-year waiting period still remained.
Ramalepe, in her attack on the relevant provisions of the LPA, argued that the three-year waiting period encroaches on the right to equality of legal practitioners and that it is irrational. It also infringes on the rights of attorneys to exercise their chosen profession freely.
She said while the attorneys’ profession should be regulated, a limitation placed on it by the three-year waiting regulation would only pass constitutional muster if it rationally related to a legitimate government purpose.
The stance of Minister Mmamoloko Kubayi is that the relief asked is moot, as Parliament was considering amending the law. She added that should the court declare the provisions unconstitutional, it should be suspended for two years for Parliament to review the provisions.
Judge Davis said the arbitrary three-year waiting period serves no rational function. There are no experience requirements or skill enhancement functions attached to it. It is simply a waiting period. The judge said there can be no legitimate governmental purpose that justifies one branch of the legal profession waiting for three years before granting the right of appearance in the high and superior courts, while the other branch (advocates) has no waiting period imposed on them.
Judge Davis said it is not difficult to appreciate why recently admitted attorneys feel they are in an indignity to be told they must wait for three years “before they are proverbially allowed to talk where the adults talk".
He pointed to the Constitution which guarantees the freedom to choose a trade and profession and remarked that it is irrational that the provisions curb this right without a reasonable or rational connection.
Regarding the minister’s argument that this application is moot and a waste of judicial resources as Parliament is already looking into changing the law, Judge Davis commented that the minister is silent on the progress of the Bill. He said until this section of the LPA has been repealed, the matter can never be moot.
In finding that the relevant section is unconstitutional, Judge Davis referred the matter to the Constitutional Court for the final word on the matter.
zelda.venter@inl.co.za