University of Cape Town v Cape Bar Council (100/86) [1986] ZASCA 86; [1986] 2 ALL SA 619 (A) (4 September 1986)

Case No. 100/86 E du P

IN THE SUPREME COURT OF SOUTH AFRICA

(APPELLATE DIVISION)

In the matter between:

THE UNIVERSITY OF CAPE TOWN Appellant

and

THE CAPE BAR COUNCIL 1st Respondent

THE LAW SOCIETY OF THE CAPE OF GOOD

HOPE 2nd Respondent

Coram: RABIE CJ, JANSEN, JOUBERT, HOEXTER et

BOTHA, JJA.

Heard: Delivered

2 2 May 1986.4 September 1986

JUDGMENT

RABIE, CJ:/

2 RABIE, CJ:

In an application brought in the Cape ofGood Hope Provincial Division in terms of the provisions of sec. 19(l)(a)(iii) of the Supreme Court Act No. 59 of 1959, the appellant applied for an order declaring -

"1.....that by passing the course offered by

the Applicant and known as Latin Intensive, a person will have complied with the requirements of Section 3(2)(a) of the Admission of Advocates Act No. 74 of 1964 insofar as the necessity to pass a course in the Latin language prescribed or recognised by Applicant for a Baccalaureus Degree is concerned", and

"2 that by passing the course offered by

the Applicant and known as Afrikaans Intensive, a person will have complied with the requirements of Section 3(2)(a) of the Admission of Advocates Act No. 74 of 1964 insofar as the necessity to pass a course in the Afrikaans language prescribed or recognised by

Applicant /

3

Applicant for a Baccalaureus Degree is concerned."

The application, which was opposed by the Cape Bar Council and The Law Society of the Cape of Good Hope, was dismissed (per Vivier J, in whose judgment Howie J and Lategan J concurred). The appeal is against the judgment and order of the Court a quo. (By agreement between the parties no order was made as to costs. ) The respondents in the application are also the respondents in the appeal -

Sec. 3 of the Admission of Advocates Act No. 74 of 1964 (hereinafter referred to as "the Act"), in so far as relevant to the appeal, provides as follows:

"3(1) Subject to the provisions of any

other law, any division shall admit to practise and authorize to be enrolled as an advocate any person who

upon/

4

upon application made by him satisfies the Court -

(a)

(b) that he is duly qualified;

(c) (d)

(2) The following persons shall for the purposes of paragraph (b) of subsection (1) be deemed to be duly qualified, namely: (a) Any person who -

(i) has satisfied all the requirements for the degree of baccalaureus legum of any university in the Republic after pursuing a course of study for that degree of not less than five years and who has passed not less than one course in the Afrikaans language, not less than one course in the English language and not less than one course in the Latin language prescribed or recognized by such university for a baccalaureus degree;

or

(ii)/

5

(ii) after he has satisfied all the requirements for the degree of bachelor other than the degree of baccalaureus legum, of any university in the Republic or after he has been admitted to the status of any such degree by any such university, has satisfied all the requirements for the degree of baccalaureus legum of any such university after pursuing courses of study for such degrees of not less than five years in the aggregate and who has passed not less than one course in the Afrikaans language, not less than one course in the English language and not less than one course in the Latin language prescribed or recognized by such university for a baccalaureus degree; or

(iii) ".

Laws which governed the admission of persons

to practise as advocates in the Supreme Court prior to

the coming into force of the Act with which we are here

concerned/....6concerned, contained no provisions of the kind mentioned

in sec. 3(2) of the Act. Universities were free to

prescribe their own requirements and curricula for a

baccalaureus legum degree awarded by them. It is said in

this connection in the appellant's founding affidavit

(deposed to by its registrar, Mr H van Huyssteen) that

at the time of the enactment of the Act "all or most

Universities in South Africa required a candidate for the

degree of baccalaureus legum to pass Latin I, Afrikaans I

and English I.

It is stated in the appellant's founding

affidavit that the appellant at present offers "first

courses" in Afrikaans, English and Latin, and that it

also offers three other language courses, namely Afrikaans

Intensive/......7Intensive, Foundation English and Latin Intensive.

With regard to Foundation English the appellant

states that it is not a qualifying course which is re-

cognised as a credit towards a bachelor's degree, but

that successful completion of the course qualifies

a candidate for entrance to the English I course.

As far as Afrikaans is concerned, the present

position at the appellant University is said to be that

a student will qualify for the bachelor of laws degree if

he passes the Afrikaans I course, or, if he has not passed

Matriculation Afrikaans, if he passes the Afrikaans

Intensive course. As to the Afrikaans Intensive course,

it is stated inter alia in the appellant's "Rules for

the/.....8the Degrees of Bachelor of Arts and Bachelor of Laws

(BA LLB)" (hereinafter referred to as "the rules")

that the "main objective of Afrikaans Intensive will

be to teach students to speak, read and write Afrikaans

as it is in use at present and to prepare underprepared

students for the Afrikaans I course." (My underlining. )

With regard to Latin, the appellant at present

still requires a student to pass Latin I before he can

obtain a bachelor of laws degree, but apparently it

contemplates recognising its Latin Intensive course as a

qualification for the bachelor of laws degree, in the

same way as it already does in the case of its Afrikaans

Intensive course.. It is stated in the rules that Latin

Intensive/......9Intensive is "designed as a preliminary course to Latin I

for non-matriculants" (my underlining) ; that students

who obtained a matriculation pass or its equivalent in

Latin will not be able to register for Latin Intensive for

degree purposes, and that a pass in Latin Intensive

will permit a student to be admitted to the Latin I

course. It is said in the appellant's founding affidavit

that Latin Intensive and Afrikaans Intensive have the

"same status and purpose".

The appellant says that it is uncertain

whether Latin I and Afrikaans I are required for a

bachelor of laws degree which would entitle the holder

thereof to practise as an advocate, or whether the

Latin/......

10

Latin Intensive and Afrikaans Intensive courses would

suffice for this purpose. The appellant suggests

in its founding affidavit that, because at the time of

the passing of the Act, "all or most Universities in

South Africa required a candidate for the degree of

baccalaureus legum to pass Latin I, Afrikaans I and

English I", it is "improbable that the legislature

contemplated the possible future substitution of a course

such as this University's 'Latin Intensive' for Latin I",

and that it therefore "seems likely that the legislature

believed that the words 'a course in Latin' necessarily

denoted a course at post-matriculation level". It

submits, however, that its Latin Intensive and Afrikaans

Intensive/......

11

Intensive courses are of a "sufficiently high standard" to

be recognised, as qualifying courses for the bachelor of

laws degree, and that the decisions in the cases of Ex parte

Barnard 1982(2) SA 70 (N) and Ex parte Friedgut 1983(2) SA

336 (T) should be followed.

In Ex parte Barnard the question was whether

the "Latin Special" course offered by the University

of South Africa was a course in the Latin language

within the meaning of sec. 3(2) of the Act. Van Heerden

J (with whom Leon J agreed) held that on the wording

of sec. 3(2)(a)(ii) the said course was a course in the

Latin language as referred to in the section. The

learned Judge said inter alia (at 72 H-73 B):

"Die/.....

12

"Die Latyn-vereiste vir die graad Baccalaureus Legum word in hierdie artikel verwys na en gekoppel aan 'n kursus in die Latynse taal wat deur !n universiteit vir 'n ander baccalaureus graad voorgeskryf of erken is. Daar word in die artikel nie verwys na matrikulasie Latyn of na 'n Latyn I-kursus nie maar eenvoudig gepraat van 'een kursus in die Latynse taal'. Die applikant het in so 'n kursus in Latyn (Latyn Spesiaal) ter behaling van die graad Baccalaureus Procurationis geslaag. Daar is getuienis in die vorm van 'n sertifikaat van die Registrateur van die Universiteit dat Latyn Spesiaal 'n kursus in die Latynse taal is wat aan die Universiteit voorgeskryf en erken word en as 'n volwaardige kursus be-skou word vir onder ander die grade Baccalaureus Iuris en Baccalaureus Procurationis. Die applikant het dus, bloot op 'n vertolking van art. 3(2)(a)(ii), voldoen aan die vereistes daarin neergelê om, wat Latyn betref, behoorlik gekwalifiseerd geag te word om toegelaat te kan word om as advokaat te praktiseer."

In/......

13

In Ex parte Friedgut the issue was whether the "Latin Preliminary" course offered by the University of the Witwatersrand and recognised by it as a full credit course for a Bachelor of Arts degree was a course in the Latin language within the meaning of sec. 3(2)(a)(i) of the Act. Boshoff JP (with whom Nicholas J and Van Dyk J agreed) held that, on the plain meaning of the words used by the Legislature, the said course was a course in Latin as required by the section. The learned Judge-President said (at 341B-C):

"Mr Van der Vyver is correct when he argues that on the language used in subparas (i) and (ii) the applicant is required to have passed a course in the Latin Language prescribed or recognized by the University of the Witwatersrand for a Baccalaureus degree and that on the evidence which is not disputed he has in fact passed a course in the Latin

language/

14

language prescribed or recognized by the University for a Baccalaureus degree..

I have carefully perused the

provisions of the Act and there is nothing whatsoever in the Act that will entitle a Court to hold that the Latin preliminary course in question is not the kind of course in the Latin language contemplated in the two sub-paragraphs."

Sec. 3(2) of the Act does not, as was pointed out by Van Heerden J in Ex parte Barnard, refer to Matriculation Latin or to Latin I, but simply to "one course in the Latin language" without any reference to the academic standard of such course, and it can hardly be disputed that, if regard were had only to what would seem to be the ordinary meaning of the words used in the section, one would be obliged to hold - as was held in both Ex parte Barnard and Ex parte Friedgut - that if a University

prescribes/

15

prescribes or recognises any particular course in Latin

or Afrikaans, as the case may be, as a course which

qualifies for the bachelor of laws degree, that course

would be a course within the meaning of the section.

Counsel for the appellant, arguing in favour of the

strictly literal construction of the words of sec.

3(2) that was adopted in Ex parte Barnard and Ex parte

Friedgut, contended that the standard of a language

course prescribed or recognised by a University for

the purposes of sec. 3(2) is irrelevant. His sub-

mission is that if a University "labels" any particular

course as being one which qualifies for a bachelor of

laws degree, the Court cannot "evaluate" that course, but

is/......

16

is obliged to accept the "label" attached to it by the

University.

It is no doubt true, as was argued on be-

half of the appellant, that it is a primary rule of

interpretation that one must, in construing an Act of

Parliament, adopt the ordinary, grammatical meaning of

the words used by the Legislature, unless such an approach

would, as it was put in Bhyat v. Commissioner for Immigration

193 2 AD 125 at 129, lead to "some absurdity, inconsistency,

hardship or anomaly which from a consideration of the

enactment as a whole a court of law is satisfied the

Legislature could not have intended." See also Du Plessis

v. Joubert 1968 (l) SA 585 (A) at 594 i.f. - 595 B and

Ebrahim v. Minister of the Interior 1977(1) SA 665 (A)

at/.....

17

at 677 D - 678 G. I would stress at the same time, however, because of the view that I take of this appeal, that it is also a well-known rule of construction that words used in a statute should be read in the light of their context . See e.g. Jaga v. Donges N O and Another; Bhana v. Dönges N 0 and Another 1950(4) SA 653 (A) at 662 G - 663 A, where Schreiner JA said:

"Certainly no less important than the oft repeated statement that the words and expressions used in a statute must be interpreted according to their ordinary meaning is the statement that they must be interpreted in the light of their context. But it may be useful to stress two points in relation to the application of this principle. The first is that 'the context', as here used, is not limited to the language of the rest of the statute regarded as throwing light of a dictionary kind on the part to be interpreted.

Often/

18

Often of more importance is the matter of the statute, its apparent scope and purpose, and, within limits, its background. The second point is that the approach to the work of interpreting may be along either of two lines. Either one may split the inquiry into two parts and concentrate, in the first instance, on finding out whether the language to be interpreted has or appears to have one clear ordinary meaning, confining a consideration of the context only to cases where the language appears to admit of more than one meaning; or one may from the beginning consider the context and the language to be interpreted together."

I am of the opinion that the words of sec, 3(2) of the Act, clear and unambiguous as they may appear to be on the face thereof, should be read in the light of the subject-matter with which they are concerned, and that it is only when that is done, that one can arrive at the true intention of the Legislature. The section deals with requirements for the baccalaureus legum degree which has to be obtained by anyone who wishes to be admitted to practise as an advocate.

it/

19

It is a degree that is awarded by Universities, and,

this being so, it seems to me to be logical and

reasonable to hold that when the Legislature prescribed

that the curriculum for that degree should contain the

language courses mentioned in sec. 3(2) of the Act, it

intended that those courses should be what one may term

true University courses, i.e. post-iMatriculat ion courses.

(The same view, it may be noted, is expressed by Professor

Coenraad Visser in a note on the decision in Ex parte

Friedgut in 1983 SALJ at 385.) I cannot accept that

the Legislature, when dealing with the requirements of

a University degree, intended that a University should be

entitled to prescribe a pass in , say, Standard 8

Afrikaans or English as a qualification for a degree

awarded/

20

awarded by it. Parliament must be taken to have known

that students who proceed to Universities after leaving

school would in the vast majority of cases, if not all,

have passed courses in Afrikaans and English at Matriculation

level, and it is most unlikely that it would have intended

that such students could subsequently obtain a University

degree after completing courses in those languages

at a level no higher than that required for a Matriculation

course. (Similar views, it may be pointed out, have

been expressed by Professor M T W Arnhem in a note on

the decision in Ex parte Friedgut in 1983 SALJ at 377,

and by F J van Zyl and J T Delport in a note on the

same case in 1983 THRHR at 471-473.) I realise that,

otherwise than in the case of Afrikaans and English,

Parliament/......

21

Parliament would in all probability not have thought

that the majority of students who proceed to University

with a view to obtaining a bachelor of laws degree would

be students who took Latin at school, but it is to be

noted that sec. 3(2) of the Act refers to the three

language courses mentioned therein in precisely the

same terms. It may be noted, too, as is stated in the

appellant's founding affidavit, that at the time of the

passing of the Act "all or most Universities in South

Africa required a candidate for the degree of baccalaureus

legum to pass Latin I, Afrikaans I and English I."

It is said in an obiter statement in Ex

parte Barnard (at 73 G - 74 E) that there has over the

years been a gradual moving away ('"n geleidelike weg-

beweging/.....

22

beweging") from the high standards formerly demanded in

Latin for a bachelor of laws degree, and it seems to be

suggested that this tendency may serve to explain why the

Legislature, in enacting sec. 3(2) of the Act, did not

refer to any particular course in Latin as being a

requirement for the said degree, but simply to "one

course in the Latin language". It is true that there

has in recent years been a lowering of the standard of

Latin courses required by Universities for a bachelor

of laws degree, but this fact cannot justify the view

that the "one course in the Latin language" mentioned

in sec. 3(2) may be any course which a University

chooses to prescribe, no matter what its standard may be

The section refers to a course in Latin in precisely

the/.....

23

the same terms as it does to a course in Afrikaans and

a course in English, and it must be held, in my opinion,

as I have said above, that the Legislature intended

that the courses in Afrikaans and English should be

University courses proper, i.e. post-Matriculation courses.

I would add that, even if the gradual debasing of standards

in Latin to which Van Heerden J referred could possibly

be thought to be a reason why the Legislature intended

that a University should be entitled to prescribe a

course in Latin of which the standard is no higher than

Matriculation Latin, there is no apparent reason why it

should have intended that a University should be able

to prescribe a course in Afrikaans or English of a

standard no higher than that attained by a student while

he/......

24 he was still at school.I now turn to consider whether the appellant's Afrikaans Intensive and Latin Intensive courses can be regarded as post-Matriculation courses. As to the Afrikaans Intensive course, it is clear that it is no more than a preliminary course which, if successfully completed, gives access to Afrikaans I. (I have already pointed out that it is said in the rules that a main objective of the course is "to prepare underprepared students for the Afrikaans I course.") Matriculation Afrikaans gives direct access to Afrikaans I, and in the circumstances there would seem to be no ground for regarding Afrikaans Intensive as a course which is of a higher standard than Matriculation Afrikaans. Latin

Intensive is likewise a preliminary course, designed,

25

it is said, in the rules, "as a preliminary course to

Latin I for non-matriculants ...". The successful

completion of this course enables a student to be

admitted to Latin I. A pass in Matriculation Latin

gives a student direct access to the Latin I course.

A student with Matriculation Latin may not enrol for

the Latin Intensive course, but is obliged to take Latin I

in order to qualify for the bachelor of laws degree.

In the light of these facts the Latin Intensive course

cannot be held to be a course of above Matriculation

level. I should point out that the appellant states

in its founding affidavit that in its view Latin Intensive

is "not . . . equivalent to a Matriculation Latin course

because/......

26

because Latin Intensive is a University course, taught

by duly qualified academic staff, and in which University

text books and methods of teaching are used", and that

"The student is for example required to do far more

independent research and studying than for the Matriculation

Latin examination." This expression of opinion regarding

the standard of Latin Intensive cannot prevail in the

light of the facts concerning the course as they appear

from the appellant's founding affidavit and the rules.

I would point out finally that the view for

which the appellant contends, viz. that its Afrikaans Intensive and

Latin Intensive courses are courses in Afrikaans and

Latin as contemplated in sec. 3(2) of the Act, would -

as/.....

27

as is shown in some detail in the judgment of the Court

a quo - lead to results which the Legislature could not

reasonably have intended. The section provides that

a student has to pass a course in Afrikaans, English

and Latin before he can obtain a bachelor of laws degree

which would entitle him to be admitted to practise as an

advocate. It follows that a University must, in order to

enable its students to qualify for such a degree, prescribe

a course in each of the three languages mentioned in the

section. If the appellant were to prescribe Latin

Intensive as a course for its bachelor of laws degree,

it would have, not one course in Latin which, if

successfully completed, would enable a student to obtain

that/......

28

that degree, but two such courses, one of which (Latin

Intensive) has to be taken by students who do not

have Matriculation Latin, and the other (Latin I) by

students who have Matriculation Latin. These two

courses, as has been said above, are not of the same

standard. Latin Intensive is merely a preliminary

course which, if passed, gives access to Latin I,

whereas Latin I is a post-Matriculation course. To

prescribe Latin Intensive as a qualifying course for

students who do not have Matriculation Latin, and Latin I

as a requirement for students who have Matriculation

Latin, has the effect that students who wish to obtain

a bachelor of laws degree are not all treated equally,

but that those students who have Matriculation Latin

are/......

29

are discriminated against in that they are required

to take a more advanced course than those who do not

have Matriculation Latin. A statute should, as far as

possible, be construed in a manner which avoids any

unequal or discriminatory treatment of the persons

affected by it. (See Steyn, Uitleg van Wette, 5th ed.,

at pp. 116-117; Sekretaris van Binnelandse Inkomste

v. Lourens Erasmus (Edms) Bpk 1966(4) SA 434 (A) at

443 C-D.) There is nothing in sec. 3(2) which could

justify the view that the Legislature intended that

the language requirements mentioned therein do not

apply to all students who wish to obtain a bachelor

of laws degree, but that some may be required to take

courses/.....

30

courses of a higher standard than others. Counsel

for the appellant conceded that the introduction of

Latin Intensive as a qualifying course for the bachelor

of laws degree would mean that there would not be one

uniform standard required of all students who wish to

obtain the degree, but two different standards, and that

this would result in the unequal treatment of students

His submission is, however, (a) that it is open to a

University to prescribe any course it chooses as a

qualifying course if it considers it to be of a

sufficiently high standard for degree purposes, and (b)

that there is, in any event, nothing unfair, or unjust,

in requiring a student who has passed Matriculation

Latin to do a more advanced course than a student who

has/......

31

has not passed Matriculation Latin. As to (a), there

is a two-fold answer. First, the Act requires, in

my opinion, as I have said above, that the qualifying

courses should be post-Matriculation courses, and the

appellant's Latin Intensive course cannot be regarded

as being such a course. Second, if the appellant in

fact considers its Latin Intensive course to be of a

sufficiently high standard for the bachelor of laws

degree, it is illogical and unreasonable not to recognise

it as such in the case of all students, but to require

some of them to do a course (Latin I) which is of a

higher standard than Latin Intensive. As to (b),

I do not agree with counsel's submission. In my opinion

it is manifestly unfair and unjust to require students who have

Matriculation/.....

32

Matriculation Latin to do Latin I before they can be awarded the bachelor of laws degree, but to permit those who did not do Matriculation Latin to qualify for the same degree after completing a course which is of a lower standard than Latin I.What I have said above regarding Latin Intensive and Latin I applies mutatis mutandis to Afrikaans Intensive and Afrikaans I.

It follows from what I have said abovethat in my view the decisions in Ex parte Barnard 1982 (2) SA 70 (N) and Ex parte Friedgut 1983(3) SA 336 (T), which we were urged to follow, were wrong, and that the judgment of the Court a quo in the present case was correct.

The/......

33

The appeal is dismissed. By agreement be-

tween the parties no order is made as to costs -

P J RABIE CHIEF JUSTICE,

JANSEN, JA

JOUBERT, JA

Concur. HOEXTER, JA

BOTHA, JA.