Mabaso v Law Society of the Northern Provinces (CCT 76/03) [2004] ZACC 8; 2005 (2) SA 117 (CC); 2005 (2) BCLR 129 (CC) (5 October 2004)

Section 20 of the Attorneys Act, 53 of 1979, is inconsistent with the Constitution to the extent that it discriminates against attorneys admitted under former 'homeland' legislation by excluding them from the short-cut enrolment procedure available to attorneys admitted under the Act. This differentiation perpetuates historical disadvantage and impairs human dignity, constituting unfair discrimination under section 9(3) of the Constitution. The Court declared the words 'under this Act' in section 20(1) invalid and ordered that the section be read to include attorneys admitted by any court in South Africa or the former territories of Transkei, Ciskei, Bophuthatswana, and Venda. The...

Citation: [2004] ZACC 8
Parties: Applicant: H E T H Mabaso; Respondent: Law Society of the Northern Provinces; Respondent: Minister for Justice and Constitutional Development
Court: Constitutional Court
Jurisdiction: South Africa
Judgment Date: 5 October 2004
Case Number: CCT 76/03
Procedural Posture: Leave to Appeal / Application for Leave to Appeal to the Constitutional Court Following Refusal of Condonation by the Supreme Court of Appeal and Dismissal of Constitutional Counter Claim by the High Court.
Outcome: Application for leave to appeal against the SCA decision dismissed; application for leave to appeal against the High Court's dismissal of the constitutional counter-claim granted; section 20(1) of the Attorneys Act declared inconsistent with the Constitution and invalid to the extent specified; no costs order made.
Judges: O'Regan, Chaskalson, Langa, Mokgoro, Moseneke, Ngcobo, Sachs, Skweyiya, van der Westhuizen, Yacoob
Legal Topics: Unfair Discrimination, Attorneys Act, Admission to Practice, Homeland Legislation, Bill of Rights Limitation

Constitutional Law Civil Procedure Unfair Discrimination Attorneys Act Admission to Practice Homeland Legislation Bill of Rights Limitation

Case Brief

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Parties

H E T H Mabaso

Applicant

Law Society of the Northern Provinces

Respondent

Minister for Justice and Constitutional Development

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal to the Constitutional Court Following Refusal of Condonation by the Supreme Court of Appeal and Dismissal of Constitutional Counter Claim by the High Court.

Legal Issues

1 Whether section 20 of the Attorneys Act, 53 of 1979, is inconsistent with the Constitution due to unfair discrimination against attorneys admitted under former 'homeland' legislation.
2 Whether the applicant is entitled to have his name restored to the roll of attorneys after removal by the High Court.
3 Whether the Supreme Court of Appeal's refusal of condonation precludes consideration of the constitutional issue by the Constitutional Court.

Ratio Decidendi

Court Disposition

Application for leave to appeal against the SCA decision dismissed; application for leave to appeal against the High Court's dismissal of the constitutional counter-claim granted; section 20(1) of the Attorneys Act declared inconsistent with the Constitution and invalid to the extent specified; no costs order made.

Orders

The Minister for Justice and Constitutional Development is joined as second respondent.
The applicant's failure to comply with rule 19 is condoned.