Molapo v Minister of Justice and Correctional Services and Others (083780/2023) [2024] ZAGPPHC 1284; 2025 (3) SA 557 (GP) (2 December 2024)

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of legal practitioners and in particular, foreign advocates, to practice in South Africa – in terms of the (now repealed) Admission of Advocates Act, foreign practitioners from designated countries may have applied to be admitted to practice law in South African – since the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.

(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.

[1] Case No 066092/2023.

[2] 28 of 2014.

[3] 74 of 1964.

[4] See the Schedule to the LPA read with section 119 thereof.

[5] 10 of 2013.

[6] 2019 (3) SA 489 (GJ).

[7] Rafoneke and Ano v Minister of Justice and Correctional Services and Others 2022 (6) SA 27 (CC).

[8] Par 15 and 17 of the Founding Affidavit.

[9] Par 13 of the Found Affidavit.

[10] Par 29.6 of the Founding Affidavit.

[11] Par 74 of the Founding Affidavit.

[12] See, for example: Law Society of the Transvaal v Tloubatla 1999 (11) BCLR 1275 (T).

[13] Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Amended Text of the Constitution of South Africa 1996 1997 (2) SA 97

[14] Rafoneke paras [77] to [79].

[15] Paras 81 and 86 of the founding affidavit.

[16] Par 25.7 of the founding affidavit.

[17] This was, and possibly still is, the position in terms of section 6(1)(c)(ii) of the Legal Practitioners Act 11 of 1983 (Lesotho)

[18] This section provides that, when interpreting legislation, a court should prefer an interpretation which is consistent with international law.

[19] 91 of 1964.

[20] 2024 (1) SA 567 (CC).

[21] Section 119(2) of the LPA merely provides that prior notices, regulations, promulgations made under the AAA remain in force, but “… except insofar as it is inconsistent with any of the provisions of this Act”.

[22] Biowatch Trust v Registrar, Genetic Resources 2009 (6) SA 232 (CC).