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FLYNOTES: PROFESSION – Admission – Foreign advocate – No regulations promulgated for admission of legal practitioners who have not previously qualified to do so – Applicant had not been admitted as an advocate prior to commencement of Legal Practice Act – Does not qualify to be admitted to practice law in South Africa – Contentions that section 24(3) of Act is unconstitutional rejected – Alternative relief rejected – Crossing line separating powers of different arms of government – Application refused – Legal Practice Act 28 of 2014, s 24(3).

HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

CASE NO: 083780/2023

(1) REPORTABLE:  YES

(2) OF INTEREST TO OTHER JUDGES:  YES

(3) REVISED.

DATE: 2 DECEMBER 2024

SIGNATURE 

 

In the matter between:

LIHAELO BRIDGETT MOLAPO                                                Applicant

 

and

 

MINISTER OF JUSTICE AND

CORRECTIONAL SERVICES                                                     First Respondent

 

MINISTER OF TRADE, INDUSTRY

AND COMPETITION                                                                    Second respondent

 

THE SOUTH AFRICAN LEGAL

PRACTICE COUNCIL                                                                  Third Respondent

 

Summary:     Admission of legal practitioners and in particular, foreign advocates, to practice in South Africa – in terms of the (now repealed) Admission of Advocates Act, foreign practitioners from designated countries may have applied to be admitted to practice law in South African – since the coming into operation of the Legal Practice Act, no regulations have been promulgated for the admission of legal practitioners who have not previously qualified to do so.  The applicant had not been admitted as an advocate prior to the commencement of the Legal Practice Act – the applicant accordingly does not qualify to be admitted to practice law in South Africa.  Her contentions that section 24(3) the Legal Practice Act is unconstitutional were rejected.  The alternate relief sought to order the Minister of Justice to regulate the admission of foreign legal practitioners and to designate the Kingdom of Lesotho as a qualifying country was rejected as doing so would be crossing the line separating the powers of the different arms of Government.  Application refused.  The Biowatch principle applied in respect of costs.

                   

 

ORDER

 

 

1.     The application is dismissed.

 

2.     Each party is ordered to pay its own costs.

JUDGMENT

The matter was heard in open court and the judgment was prepared and authored by the judge whose name is reflected herein and was handed down electronically by circulation to the parties’ legal representatives by email and by uploading it to the electronic file of this matter on Caselines.  The date for hand-down is deemed to be 2 December 2024.

 

DAVIS, J

Introduction

[1]             The applicant is a foreign legal practitioner and in terms of existing law does not qualify to be admitted as a legal practitioner to practice law in South Africa.  She contended that the law as it stands is unconstitutional and that the previous dispensation regarding the admission of advocates should be “revived”.  In the alternative, she contended that the Minster of Justice (the Minister) should regulate the admission of foreign practitioners in such a fashion that she (and others in her position) be allowed to practice law in South Africa.

 

The parties

[2]             The applicant is a foreign female legal practitioner.  She has been admitted as an advocate in Lesotho on 20 March 2023.  She is a citizen of the Kingdom of Lesotho and is domiciled there.  She currently however, resides in Pretoria.

 

[3]             The applicant has cited the Minister as the first respondent and the Minister of Trade, Industry and Competition as the second respondent.  The Legal Practice Council (the LPC) has been cited as the third respondent.  The Minister and the LPC has opposed the applicant’s application.  The second respondent merely delivered an “explanatory affidavit”, abiding the decision of this court.

 

The application before this court

[4]             In June 2023 the applicant launched an application in this court[1] for her admission as a legal practitioner in terms of the Legal Practice Act[2] (the LPA).  In that application she relied on Section 24(3) of the LPA which she claimed, when read with section 119(2), allowed her to invoke section 5 of the Admission of Advocates Act[3] (the AAA).

 

[5]             After objection to her application for admission by the LPC, the applicant withdrew that application on 3 August 2023.

 

[6]             In August 2024, the applicant launched the present application, in which she claimed the following rather extensive relief:

 

“2.      Declaring section 24(3) of the Legal Practice Act, 2014 as amended, (LPA) as unconstitutional and invalid to the extent that it does not allow foreigners who have been admitted to practice as advocates in other jurisdictions to be admitted and authorised to be enrolled as legal practitioners in Republic of South Africa.

 

3.       Declaring the conduct of the First, Second and Third Respondents as unconstitutional and invalid to the extent that

 

3.1.     the First Respondent has failed to make regulations in respect of the admission and enrolment of foreign legal practitioners in the Republic of South Africa in that the First Respondent has failed to determine the right of foreign legal practitioners to appear in courts in the Republic and to practice as legal practitioners in the Republic and/or give effect to any mutual recognition agreement to which the Republic is party, regulating the provision of legal services by foreign legal practitioners or the admission and enrolment of foreign legal practitioners as required by section 24(3) of the LPA.

 

3.2.     the second and third respondents have failed to ensure that the first respondent make regulations in respect of the admission and enrolment of foreign legal practitioners through determining the right of foreign legal practitioners to appear in courts in the Republic and to practice as legal practitioners in the Republic and/or give effect to any mutual recognition agreement to which the Republic is party, regulating the provision of legal services by foreign legal practitioners or the admission and enrolment of foreign legal practitioners as required by section 24(3) of the LPA.

 

3.3.     Alternatively to 3.2, the second and third respondents have failed to consult with the first respondent with the view that the first respondent make regulations as contemplated in section 24(3) of the LPA.

 

3.     Further alternative to 3.2 and 3.3, declaring that the second and third respondents were required, in terms of section 24(3) of the LPA, to ensure that they consult with the first respondent and the failure to ensure the said consultation and resultant failure of the first respondent to make regulations contemplated in section 24(3) of the LPA is unconstitutional and invalid.

 

5.       Directing that the Legislature amend section 24(3) of the LPA to create a right for foreign legal practitioners who are admitted as advocates in other jurisdictions, as recognised by the Republic of South Africa in terms of section119(2) of the LPA, to be admitted and enrolled as foreign legal practitioners in the Republic of South Africa.

 

6.       Pending amendment of section 24(3) of the LPA, a declaration that section 5 of the Admission of Advocates Act as read with section 119(2) of the LPA shall be a transitional arrangement and all foreign legal practitioners who are admitted and enrolled in other jurisdictions be eligible and entitled to be admitted and enrolled as foreign legal practitioners in the Republic of South Africa.

 

7.       Alternative to 5, directing that the first respondent and in consultation with the second and third respondents give effect to the provisions of section 24(3) of the LPA, and the first respondent make regulations as contemplated in section 24(3) within 18 months from the date of the Court's order.

 

8.       Pending the making of regulations by the first respondent (in consultation with the second and third respondents), a declaration that section 5 of the Admission of Advocates Act as read with section 119(2) of the LPA shall be a transitional arrangement and all foreign legal practitioners who are admitted and enrolled in other jurisdictions be eligible and entitled to be admitted and enrolled as foreign legal practitioners in the Republic of South Africa.

 

9.       Directing that the first respondent submits a progress report on the status of the regulatory making process within 12 months from the date of this Court's order.

 

10.     Ordering that failure by the first respondent to make regulations within 18 months as ordered constitutes contempt of court and the first respondent be ordered to provide a list of names of all the relevant officials who would have failed to ensure that the regulations are made as ordered and for a steps to be taken to enforce compliance with this Order.

 

11.     Directing that should the first respondent not be able to meet the deadline set out in prayer 7, above, that the first respondent seek an extension of the time periods on application fully motivated and served all the parties in this process, including such parties joined as amicus curiae.

 

12.     Declaring that, pending the promulgation of the regulations contemplated in section 24(3) of the LPA, that section 5 of the Admission of Advocates Act, 1964 is revived.

alternatively to 12 above

 

13.     Declaring that the provisions of section 5 of the Admission of Advocates Act, 1964 are read into the provisions of section 24(3) pending the making of regulations by the First Respondent as contemplated in section 24(3).

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14.     Declaring that prayers 12 and 13 (as the context shall require) shall apply in respect of all foreign legal practitioners whether qualified before or after the commencement of the Legal Practice Act, 2014 as amended.

 

15.     The Third Respondent be authorised to enrol foreign legal practitioners as advocate.

 

16.     Granting such just and equitable remedy, including such appropriate relief as the Africa contemplated in section 38 of the Constitution of the Republic of South Africa 1996 as amended, as the Honourable Court shall deem meet under the circumstances.

 

17.     That the first, second and third respondent be ordered to pay the costs of this application, including the costs occasioned by the employment of three counsel, jointly and severally with the one paying and the others being absolved”.

 

The law

[7]             Section 5 of the AAA provided as follows: “5. Admission to practise in the Republic of Advocates practising elsewhere

 

(1)    Notwithstanding anything to the contrary in this Act contained but subject to the provisions of any other law, any division may admit to practise and authorise to be enrolled as an advocate any person who upon application made by him satisfies the court – (a) that he has been admitted as an advocate of the Supreme or High Court of any country or territory outside the Republic which the Minister has for the purpose of this section designated by notice in the Gazette (in this Act referred to as a designated country or territory); … (b) … (c) … (d) … (2) Any person who is admitted and authorised to practise and to be enrolled as an advocate in terms of subsection (1), shall be enrolled as an advocate on the roll of advocates”.

 

[8]             Prior to the repeal of the AAA, the Kingdom of Lesotho had been a designated country.

 

[9]             The whole of the AAA was repealed by the LPA[4].

 

[10]         Practitioners who had been entitled to avail themselves of the provisions of section 5 of the AAA, had however been thrown a lifeline after the repeal of that Act by way of section 115 of the LPA.  This provides as follows: “Any person who, immediately before the date referred to in section 120(4) was entitled to be admitted and enrolled as an advocate … is, after that date, entitled to be admitted and enrolled as such in terms of this Act”.

 

[11]         The commencement date of the applicable provisions of the LPA contemplated in section 120(4) thereof, was 1 November 2018.  The implications of such commencement on applications for admission had been fully explained by a full court, constituted in terms of section 14(1) of the Superior Courts Act[5] in Ex pate: Goosen and Others[6] (Goosen).

 

[12]         The “expanded” order granted in Goosen clarified the position of applicants wishing to avail themselves of section 115 of the LPA: It reads:

 

“(1)     Any person who applied for admission to practice, whose application was pending on 1 November 2018 is entitled to invoke the provisions of section 115 of the Legal Practice Act 28 of 2014, in order, thereby, to rely on the provisions of the Admission of Advocates Act 74 of 1964 to be admitted in terms of section 24 of the Legal Practice Act.

 

(2)      Any person who applied for admission to practice, whose application was pending on 1 November 2018 is entitled to invoke the provisions of section 115 of the Legal Practice Act 28 of 2014, in order, thereby, to rely on the provisions of the Attorneys Act 53 of 1979 to be admitted in terms of section 24 of the Legal Practice Act.

 

(3)      Any person, who applies for admission to practice, on or after 1 November 2018, who wishes to rely upon the requirements as set out in section 3 of the Admission of Advocates Act 74 of 1964 or section 15 of the Attorneys Act 53 of 1979, is entitled to invoke the provisions of section 115 of the Legal Practice Act 28 of 2014, in order, thereby, to rely on the provisions of the Admission of Advocates Act or the Attorneys Act to be admitted in terms of section 24 of the Legal Practice Act.

 

>(4)      The appropriate formulation of an order admitting an applicant for admission as a legal practitioner in any of the categories mentioned in (1), (2) and (3) is thus:

 

“The applicant is admitted to practice as a Legal Practitioner and the Legal Practice Council is authorised to enrol the applicant as an [Attorney]/[Advocate]”.

 

[13]         In terms of the section 24(2) the LPA, admission to practice as a legal practitioner (which includes those wishing to be enrolled as advocates), is restricted to South African citizens or permanent residents of the Republic.

 

[14]         The above restriction has been found to be Constitutionally compliant[7].

 

[15]         In terms of section 24(3) of the LPA, the Minister “… may, in consultation with the Minister of Trade and Industry and after consultation with the Council, and having regard to any relevant international commitments of the Government of the Republic, make regulations in respect of admission and enrolled to – (a) determine the right of foreign legal practitioners to appear in courts in the Republic and to practice as legal practitioners in the Republic or (b) give effect to any mutual recognition agreement to which the Republic is a party, regulating (i) the provision of legal services by foreign legal practitioners or (ii) the admission and enrolment of foreign legal practitioner”.

 

[16]         It is common cause that the Minister has not made any regulations as contemplated.

 

The applicants’ contentions

[17]         The applicant concedes that, as the law currently stands and as interpreted by the respondents, she is not entitled to be admitted to practice law in the Republic[8].  Her suggestion is that “… one would have to read into section 24(3) the provisions of section 5 …” of the AAA[9].

 

[18]         The applicant’s further contentions are that she had a right (to be admitted to practice law in the Republic) under the AAA, which had been “taken away” by its repeal.  She argued that such a right could be “revived” in terms of section 119(2) of the LPA.  For this purpose, she alleged that the reasoning in Goosen “cannot be used to limit my rights”.

 

[19]         As an alternative, the applicant contended that the Minister is under a Constitutional duty to make regulations which would provide for the applicant’s admission and that the Minister of Trade and Industry is equally so obliged.  In addition, She accused the LPC to be “… complicit in the obstruction and deprivation of my rights …”.[10]

 

[20]         Pursuant to these contentions, the applicant averred that this “… Court should thus order that section 5 of the Admission of Advocates Act continues to exist until such time as the rights of foreign legal practitioners are given effect to by the LPA.  In making such an order, this Court would not be unduly trammelling and tramping upon the terrain of the Legislature nor the Executive …”.[11]

 

[21]         Lastly, the applicant contended that section 24(3) of the LPA was unconstitutional as it infringed upon her rights of equality, freedom of association and dignity.

 

The right to be admitted

[22]         The principal argument of the applicant is that the “rights” which she had in terms of the AAA had been “taken away” from her.

 

[23]         The full court in Goosen explained that all those who had acquired rights in terms of the AAA prior to its repeal, retained those rights and were, in terms of section 115 of the LPA, entitled to enforce or exercise them, despite the repeal of that Act.

 

[24]         In simple terms, this means that, had the applicant been admitted as an advocate in the Kingdom of Lesotho before 1 November 2018, she would, in the same manner as those South Africans who had obtained LLB degrees before that date, have been entitled to apply to be enrolled after that date, in terms of the LPA (on condition of course, that all the other requirements, such as being a fit and proper person without convictions or pending proceedings, have been met).

 

[25]         The simple fact of the matter is further that the applicant had not acquired such rights.  She was only admitted as an advocate on 20 March 2023, after having completed her practical vocational training from April 2019 to January 2020 (in the intervening years she sought to do the same in South Africa).

 

[26]         The retention provision and the transitional or continued right created by section 115 of the LPA did not extend to rights which had not yet been in existence on 1 November 2018.  Any rights which a prospective legal practitioner might acquire after that date, can only be exercised in terms of the LPA and not the repealed AAA.

 

[27]         The applicant’s argument that the LPA had “taken away” some of her rights, is therefore unsustainable.  At the time the LPA had come into operation, the applicant had no accrued rights.

 

[28]         The applicant’s alternative argument, namely that the AAA, insofar as it provided for the admission of foreign advocates from designated countries, be kept “alive” so that persons in the position of the applicant, may at some future date after 1 November 2018, rely on the terms of a repealed act of parliament, flies directly in the face of parliamentary sovereignty. To demand from a court that it deems the provisions of an act of parliament still applicable when parliament has expressly repealed those provisions, would amount to law-making way beyond the separation of powers principle.

 

[29]         On both these principal assertions of an alleged right, the application should fail.

 

The Constitutional attacks

[30]         As an alternate line of attack, the applicant averred that the repeal of the AAA, without any equal replacement of the provision for the admission of foreign advocates as legal practitioners, infringed her Constitutional rights.  For this argument, she sought to assert three rights, namely that of freedom of association, that of equality and that of dignity.

 

[31]         The right to freedom of association has a deeply significant place in South Africa’s previously legislated fractured past, but to claim that a foreign advocate is denied this right simply because she cannot practice law in South Africa, is stretching the right of association too far.  The applicant is still free to associate with whomsoever she wishes, but the exclusion placed on her association with other members of the South African legal profession due to the fact that she is not a South African legal practitioner, cannot be cured by invoking section 18 of the Constitution.

 

[32]         The reason for this is situated in the nature of the right of association guaranteed by Section 18.  This generally encompasses the right to associate with others in political, cultural or religious associations.  This association with others does not encompass the freedom to choose one’s profession.  That is separately provided for in section 22 of the Constitution, which also provides that the practice of a profession, in this case law, may be regulated by law.  This regulation is currently the LPA.  Such regulation often occurs in respect of commercial or professional associations.[12]

 

[33]         As already stated, the LPA restricts admission of legal practitioners to those who are either citizens of the Republic or permanently resident therein.  The Constitutional Court has in Rafoneke above, found that this limitation is constitutionally justifiable on the basis of rationality.

 

[34]         The Constitutional Court found in this regard that, once it is accepted that the State may regulate entry into the legal profession in terms of Section 22 of the Constitution, the limitation placed on such entry to citizens and permanent residents, is in itself Constitutionally justifiable.  The Court put it as follows: “In order to assess the rationality of the decision, the provisions of section 24(2) cannot be considered without due regard to section 22 of the Constitution, which, as already stated, empowers the state to regulate the profession …  There is no issue that the LPA does so.  The legislature is therefore at liberty to decide how far to extend the admission into the legal profession to non-citizens and it has chosen to draw the line at permanent residents … once it is accepted, as stated in Final Certification[13], that the country has no duty to extend the right of freedom of trade, occupation and profession to non-citizens, it cannot be gainsaid that it may be rational for the state to adopt legislation which has, its legitimate object, the restriction of access to the profession.  And section 24(2) is such legislation”.[14]

 

[35]         By parity of reasoning, the exclusion of foreign advocates to practice law in the Republic, save in some regulated instances, should also pass Constitutional muster.  The wish to exercise a right to associate with a professional body cannot trump this regulation and neither can the right to associate therefore equate to a right to be admitted beyond the regulatory limitations imposed by the LPA.

 

The right to equality

[36]         The applicant argued that she is, as a Mosotho, not treated as other Basotho advocates who had previously been admitted to practice in the Republic under the AAA.  She is correct.  The law has changed by the time she was admitted as an advocate in the Kingdom of Lesotho.

 

[37]         A similar change befell those who only obtained their LLB degrees after 1 November 2018.  They could also no longer be admitted as advocates under the AAA as it had been repealed, and they now would have to qualify to be admitted as legal practitioners in terms of the LPA.

 

[38]         In Goosen, the court held that: “The objective and the effect of the LPA is deliberately to revolutionise the regulation of the South African Legal Profession.  The LPA regime is in stark contrast from the two former regimes which were distinctly asymmetrical.  [the court then referred to the different “pathways” to the professions of advocates and attorneys which had previously existed].  The LPA unambiguously prescribes vocational training as a sine qua non for admission to practice and unequivocally repudiates the anomaly that has existed in respect of advocates under the repealed AAA regime, in terms of which advocates unlike attorneys, could be unleashed on the litigating public, bereft of any vocational training whatsoever.  Thus, an unpalatable anachronism has been extinguished”.  Of course, this declaration only applied to those advocates who had been admitted solely on the basis of having possessed an LLB degree and not those advocates who had, in addition thereto, undergone pupillage and passed the rigorous bar exams of the organized advocates profession.

 

[39]         Nevertheless, the differentiation imposed by the LPA is between those who had previously qualified under a repealed regime and those who would now qualify under a “new” regime.  This differentiation is something quite distinct from the differentiation complained of by the applicant.  She is, in fact, treated on equal footing as all other prospective legal practitioners who only qualified after 1 November 2018.  All such prospective practitioners can only pass the “gateway” to the profession upon satisfaction of the provisions of the LPA.

 

[40]         The differentiation imposed by the two acts in question is therefore not on any of the prohibited grounds mentioned in section 9(3) of the Constitution, being race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language or even birth.  I therefore find that the applicant’s right to equality is not being infringed upon by section 24(3) of the LPA. 

 

[41]         Similar arguments had unsuccessfully featured in Rafoneke and the justification of any infringement upon a right to equality by differentiating between citizens and non-citizens, should apply to the differentiation between those citizens and permanent residents who qualify to be admitted and foreign practitioners who had been admitted outside the Republic.

 

Right to dignity

[42]         The third Constitutional right which the applicant seeks to assert, is her right to dignity.

 

[43]         She claims that the provisions of the LPA “… tramples on my self-worth, recognition and fulfillment as a legal practitioner as I do not have any recourse to get admitted and enrolled as a foreign practitioner.  The result is that, despite spending the better part of my life in South Africa, I am destined to be unable to make a living … with the limited opportunities and participating (sic?) South Africans within its territory, young practitioners as myself are left to fend for the scraps that remain, and which scraps are not sufficient for a sustainable livelihood.  One, notwithstanding the sacrifices, would be compelled to resile oneself to abject poverty and which poverty would be alleviated by being afforded an opportunity to practice within the Republic of South Africa”.[15]

 

[44]         The emotive nature of these averments aside, they are not a model of clarity.  It appears that the applicant claims that she is admitted to practice law in the Kingdom of Lesotho, but cannot make a living there and that, if she is not allowed to practice law and make a living in South Africa, her dignity is thereby infringed.

 

[45]         Firstly, as also pointed out in Rafoneke, South Africa as a sovereign country is not under any obligation to treat foreign prospective legal practitioners on the same footing as South African citizens and permanent residents.  Secondly, the fact that the applicant may experience financial hardship in practicing law in her own country, does not as of right entitle her to demand to do so in South Africa.  This is also the point made in the Minister’s answering affidavit.

 

[46]         Moreover, the applicant’s averments are gainsaid by her own evidence: she has completed vocational training in South Africa and had already been studying for the completion of her LLD in South Africa.  In this regard she conceded: “… having a doctorate in law is regarded as a critical skill.  Only  upon obtaining the LLD, will I be eligible to apply for a work permit and then the possibility [exists] that I may sometime in the future qualify for a permanent residence permit”.[16]

 

[47]         It can hardly be argued that the Constitutionally permissible regulation of entry to the legal profession, infringes on a person’s dignity, including that of the applicant.

 

Designation of the Kingdom of Lesotho

[48]         The applicant started off her attack on the LPA under this rubric by pointing out that South African advocates have historically been admitted and allowed to practice law in the Kingdom of Lesotho upon proof that they had continuously been practicing as such for five years and remained admitted in South Africa.[17]

 

[49]         The applicant also referred to the fact that the Kingdom of Lesotho had historically been designated by the then Minister as a designated country for purposes of the AAA, on 19 November 2004.

 

[50]         Apart from the above two aspects, she could not produce any other reciprocal covenant or agreement, committing the two countries to bilateral recognition of legal practitioners admitted in the respective countries.

 

[51]         The applicant also referred to legislation in other neighbouring countries such as Zimbabwe, Botswana and eSwatini.  Prudently though, she stated: “While I have enclosed the Acts of various countries, these are attached for illustrative purposes and for context.  I pass no comments thereon and the first respondent is best placed to comment [thereon] and/or such other person that has relationship with those countries and the relevant laws”.

 

[52]         I also do not find it necessary to analyse the foreign legislation referred to, save to point out that the permissive allowance of foreign legal practitioners (including advocates) to practice in these countries, either in general or on an ad hoc basis only, are neither uniform, nor unqualified in all instances.

 

[53]         The point which the applicant does make, however, is that section 24(3) of the LPA envisages the promulgation of regulations in terms of which foreign legal practitioners may either appear in South African courts or be admitted and enrolled to practice law in South Africa.  Her point is further that, since no such regulations have been promulgated, her “rights” are thereby denied her.

 

[54]         Firstly, the section is couched in the permissive form.  The Minister “may”, but is not obliged to make the regulations in question.  This is a point heavily relied on by the Minister.

 

[55]         In answer to the question as to why, despite the permissive wording of the section, no regulations have been made in the six years since 1 November 2018, the Minister replied that primarily, the right to be admitted as a legal practitioner in South Africa, is located in section 24(1) and 24(2) of the LPA and not in section 24(3).  Sections 24(1) and 24(2) read with section 115 give effect to section 22 of the Constitution and provide for three categories of persons who may be admitted to practice, namely citizens, permanent residents and those who, before the LPA came into operation, were entitled to be admitted and enrolled as legal practitioners.

 

[56]         The Minister further contended that the legal profession (including the practice as an advocate) is not a scarce or critical skill.  The government policy decision underlying the differentiation contained in the LPA, seeks to ensure that the rights of citizens and permanent residents to practice law are preserved.  The Law society of South Africa (the LSSA) has previously highlighted, in documents filed in Rafoneke, that a blanket provision allowing non-citizens to qualify for admission as legal practitioners would have a negative impact on South African graduates who already find it difficult to secure entry into the profession.  The differentiation contained in the permissive regulation of the legal profession therefore serves a lawful and rational purpose.

 

[57]         The Minister further contended that the differentiation is also not unfair insofar as it does not preclude the applicant from working in South Africa or from rendering legal services in other capacities than that which only admitted legal practitioners may provide.

 

[58]         Against this background, it was stated on behalf of the Minister, that the fact that no regulations had been made, was not as a result of a failure, but as a result of an ongoing evaluative and consultative process.  This much is also clear from the wording of section 24(3) which envisages input from the LPC and the third respondent.

 

[59]         It cannot be overemphasized that the making of regulations allowing foreign practitioners admission in South Africa remain permissive and not obligatory.  The permissive wording of the section, mirrors the finding in Rafoneke that there is no obligation on the state or the Minister to extend the right to practice law in South Africa beyond the three categories mentioned in par [53] above.

 

[60]         In a last-ditch attempt to establish such an obligation, the applicant relied on the General Agreement of Trade in Services (the GATS).  South Africa is a member of the World Trade Organisation (the WTO).  The GATS is an international multilateral treaty of the WTO concerned with the liberalization of trade in services among member states.  It is, however not a mutual recognition agreement (MRA) as contemplated in section 24(3).  The applicant has also not identified any provisions in the GATS which could have been elevated beyond its general tenor to constitute a MRA between South African and any other specified country, in particular the Kingdom of Lesotho, which would have provided for reciprocal admission or recognition of legal practitioners.

 

[61]         Even the sector-specific commitments made by member states of the WTO in the Schedule of Specific Commitments to the GATS, do not assist the applicant.  While South Africa has made commitments under Mode 3 (commercial presence) and Mode 4 (movement of natural persons) of the GATS, no commitment had been made in respect of cross-border supply of legal services.  This again, reflects the exercise of sovereign policy referred to in Rafoneke.   

 

[62]         There is therefore, no obligation, statutory or otherwise, on the Minister to have made regulations which would have entitled the applicant to apply for admission.  It follows from this that where the Minister has no such obligation, the accusation by the applicant of collusion on the part of the LPC is not only misplaced, but scurrilous.  On the same basis, the applicant cannot claim that the third respondent be compelled to consult with the Minister who is not in the process of promulgating regulations.  This point was expressly made by the third respondent, whilst otherwise abiding the decision of the court.

 

Legislative powers

[63]         The applicant sought an alternative way around the obstacle of the absence of regulations by arguing that section 24(3) of the LPA impermissively delegated legislative powers to the Minister.

 

[64]         This argument was formulated as follows in the Heads of Argument filed on behalf of the applicant: “the right [to be admitted] is created in section 24(1) as constructively read with sections 24(3), sections 94(1)(f) through the provisions of section 233[18] of the Constitution together with the GATS … to the extent it may be suggested that Parliament and/or the legislature delegated its powers of primary law-making to the First Respondent (working together with the Second and Third Respondents), we submit that such a delegation would, in law, be impermissible and ergo, unlawful.  That is, if the LPA does not create the right, then the LPA would have delegated primary law-making responsibility to the Executive and this is not permissible.  The First Respondent can only make subordinate legislation”.

 

[65]         Firstly, as already explained above, the applicant has no right to be admitted to practice law in South Africa.  That right is, in terms of the LPA limited to the three categories already mentioned above.  In South Africa, this right may be extended to practitioners from foreign jurisdictions to permit them to be admitted and/or enrolled to practice in the Republic.  These permissions are provided for by way of sub-ordinated legislation by way of regulations which the Minister may make after consultation with the profession (represented by the LPC) and taking into account economic realities, provided for by consultation with the Minister of Trade and Industry.

 

[66]         In making the regulations, the Minister would therefore not “create” rights, but merely extend the rights afforded existing categories of practitioners, to practitioners who enjoy similar rights in their own countries.

 

[67]         In my view, these permissive regulations do not constitute primary law-making functions and are similar to those of the Minister of Finance under the Customs and Excise Act[19] recently considered by the Constitutional Court in Nu Africa Duty Free Shops (Pty) Ltd v Minister of Finance and Others[20].  Therein the Court reaffirmed that the delegating of authority to make sub-ordinate legislation within the framework of a statute which permits delegation, is permissible.

 

[68]         In the present instance, the LPA permits such delegation.  It does so in section 94(1) which provides that “The Minister may, and where required in the circumstances, must … make regulations relating to – … (f) the admission and enrollment of foreign legal practitioners as contemplated in section 24(3)”.  Section 24(3) as already indicated, only contains use of the permissive “may” and not the obligatory “must” as, for example in section 6(1)(b) (the obligation of the LPC to develop norms and standards for the legal profession); section 14(1)(a) (the obligation of the Minister to take certain steps if he or she does loses confidence in the LPC to perform its functions), or section 29(1) (the obligation of the Minister to prescribe the requirements for community services).

 

Conclusion

[69]         I conclude that the applicant has not made out a case for the relief sought and that the application must fail.  Apart from the debates already set out above, the most succinct way to summarise the basis for this conclusion is to do so with reference to the relief claimed, which is where this judgment commenced.

 

Prayer 2: declaring section 24(3) of the LPA unconstitutional “… to the extent that it does not allow foreigners who have been admitted to practice as advocates in other jurisdictions to be admitted and authorised to be enrolled as legal practitioners in the Republic”.  

[70]         The impugned section is not unconstitutional.  It reflects the sovereign policy choice of the Legislature and does not unfairly discriminate against the applicant (or any other person in a similar position) on any of the impermissible grounds set out in section 9(3) of the Constitution.  Section 24(3) of the LPA also does not infringe the applicant’s rights to human dignity nor her right of association.  It simply regulates access to the legal profession as contemplated in section 22 of the Constitution.

 

Prayer 3 and its sub-prayers and alternatives: Declaring the conduct of the Minister and other respondents as constitutionally invalid to the extent that regulations have not been made which would have allowed the applicant to be admitted and enrolled as an advocate in South Africa.

[71]         Neither the Minister nor the State has any obligation to extend the right to practice law in South Africa to persons other than qualifying citizens and permanent residents and those persons who had previously qualified to be so admitted and to whom section 115 of the LPA applies.  The delegated authority to, by regulation, extend these rights to persons such as the applicant, is permissive and not obligatory and has not (yet), been exercised.  

 

Prayer 5: Directing the legislature to amend section 24(3) of the LPA to create a right for foreign practitioners.

[72]         A court cannot grant this relief as it would, in doing so, impermissibly cross the line separating the powers between the judiciary and the legislative arm of government.

 

Prayer 6 – 11: Transitional provisions, providing for the enactment of legislative changes, the promulgation of regulations progress reports and contempt of court proceedings and the like.

[73]         In view of the fact that the relief sought in prayers 2, 3, 4 and 5 cannot be granted, these “subsidiary” prayers can also not be granted.

 

Prayers 12, 13 and 14: Declaring that section 5 of the Admission of the Advocates Act be “revived”.

[74]          Not only does the applicant not have a right to this relief, such a declaration of “revival” of a repealed Act would be a direct and impermissible encroachment on Parliament’s legislative prerogative.  The applicant’s reliance on section 119(2)[21] of the LPA is misplaced as any retention of the AAA rights would be inconsistent with the repeal thereof.  The only retentions provided for, are those contemplated in section 115, as already explained.

 

Prayer 15: Directing the LPC “to enroll foreign legal practitioners as advocates”.

[75]         Apart from the sheer overbroad formulation of this relief, the LPC can only enroll practitioners when authorised to do so in terms of the LPA.  The claim for this relief is therefore, both in general and in the circumstances of this case, incompetent.

 

Prayer 16: Granting a just and equitable remedy as contemplated in section 38 of the Constitution.

[76]         Appropriate relief may only be granted by a court in terms of section 38 of the Constitution in circumstances where a right contained in the Bill of Rights has been infringed or threatened.  The claim of a foreign advocate to practice law in South Africa without otherwise satisfying the provisions of the LPA, is not such a right.  As already indicated, no other right contemplated in Chapter 2 of the Constitution is being infringed upon or is under threat by the LPA.

 

Costs

[77]         In the event that this court declined to grant the applicant the relief that she sought, she contended that the Biowatch-principle[22] should apply.  The respondents, in particular the LPC, contended that costs should follow the event.  Even if the applicant’s reliance on purported breaches of her Constitutional rights were tenuous from the start, in similar fashion as in Rafoneke, I determined that each party should pay its own costs.  In exercising my discretion in this fashion, I have not lost sight of the nature of the LPC, but find that even it is subject to the Biowatch-principle.

 

 Order

[78]         In the circumstances, the following order is made.

 

1.          The application is dismissed.

 

2.          Each party is ordered to pay its own costs.

 

N DAVIS

Judge of the High Court

Gauteng Division, Pretoria

 

Date of Hearing: 30 July 2024

Judgment delivered: 2 December 2024 

 

APPEARANCES:

For the Applicant:	Adv M Ramaili SC together with
	Adv K Mvubu and Adv K Maponya
Attorney for the Applicant:	Mphahlele and Masipa Attorneys
	Inc., Pretoria.
For the 1st & 2nd Respondent:	Adv K Moroka SC together with
	Adv M Lekoane
Attorney for the Respondent:	State Attorney, Pretoria
For the 3rd Respondent:	Mr R Stocker
Attorney for the Respondent:	Rooth & Wessels Inc, Pretoria

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