Clark v Registrar, Ciskei Supreme Court
| Jurisdiction | South Africa |
| Judge | De Wet CJ and Pickard J |
| Judgment Date | 01 February 1983 |
| Citation | 1983 (2) SA 316 (CKS) |
| Hearing Date | 24 January 1983 |
| Court | Ciskei Supreme Court |
Pickard J:
The applicant, an attorney, notary and conveyancer B of the Supreme Court of South Africa, practising as a partner in the firm "Barnes and Ross" in King William's Town, applies for a declaratory order in this matter. The order he seeks appears fully from the notice of motion but may be summarised as an order declaring that he is an attorney, notary C and conveyancer of this Court, entitled to practise as such in this Court without having to comply with any further formalities and has been so entitled since the inception of this Court when Ciskei became independent on 4 December 1981. The other similar relief sought in the notice of motion relates to the period when the territory, now comprising the Republic D of Ciskei, was in the process of being promoted to an independent state and was being served by the High Court of Ciskei.
The applicant was duly admitted by the Eastern Cape Division of the Supreme Court of South Africa as an attorney in 1978 and as a conveyancer and a notary public in 1980. The Registrar of that Court was duly ordered on each occasion to enrol his name E as such.
The history of the judiciary of the area over which the Supreme Court of Ciskei now has its jurisdiction (hereinafter referred to as "this area") can be briefly summarised as follows:
Initially a large area of the Eastern Cape, which encompassed the whole of this area, was served by the F Eastern Districts Local Division which was a Local Division of the Cape Provincial Division of the Supreme Court of South Africa.
With effect from 1 January 1962, the former Eastern Districts Local Division attained (in terms of s 2 of Act 68 of 1957) the status of a Provincial Division of G the Supreme Court of South Africa.
When this area became a "self-governing territory" on its path to independence, the State President of the Republic of South Africa, by virtue of the powers vested in him by s 34 of the National States Constitution Act 21 of 1971, established, with effect from 1 October 1981, "a high Court to be known as the High Court of Ciskei" for this area "to replace any H Provincial Division of the Supreme Court of South Africa... which had jurisdiction in the said area". Vide Proc R 151 of 1981 published on 21 August 1981.
Subsequently, on 4 December 1981, Ciskei became an independent state and the Republic of Ciskei Constitution Act 20 of 1981 became operative and, in terms of s 53 thereof, this Court was established.
Pickard J
Sections 74 and 75 thereof provide as follows:
Notwithstanding the provisions of s 82 (1), the High Court established under s 34 of the Black States Constitution Act 21 of 1971 shall, as constituted immediately prior to the commencement of this Constitution, be deemed to be the Supreme Court of A Ciskei and to have been established and constituted as such by ss (1).
The Rules which immediately prior to the commencement of this Constitution applied in respect of the High Court referred to in ss (1) shall, notwithstanding the provisions of ss (1), apply mutatis mutandis in respect of the Supreme Court of Ciskei and shall be deemed to have been duly made, approved and published in terms of this section.
B Any person who immediately prior to the commencement of this Constitution holds the office of Chief Justice, Judge, Attorney-General or Deputy Attorney-General in the districts comprising Ciskei shall be deemed to have been appointed as Chief Justice, Judge, Attorney-General or Deputy Attorney-General of Ciskei, as the case may be, by the competent authority in Ciskei.
C The laws regulating the admission of advocates and attorneys to practise before the Supreme Court of South Africa shall mutatis mutandis apply to the admission of advocates and attorneys to practise in the Supreme Court of Ciskei.
All advocates, attorneys, notaries and conveyancers entitled immediately prior to the commencement of this Constitution to practise in or in the area of jurisdiction of the High Court referred to in s 74 D (1), shall be entitled, subject to the provisions of the aforesaid laws, to practise in or in the area of jurisdiction of the Supreme Court of Ciskei."
The applicant, having been admitted to practise in the Eastern Cape Division prior to the establishing of the High Court of Ciskei, maintains that he was automatically entitled (without E any further formalities) to practise in the High Court and accordingly is entitled similarly to practise in this Court.
The dispute between the parties arose when the Registrar of this Court (the respondent) circularised a letter to attorneys (including the applicant's firm) wherein he indicated that
F "on careful consideration of the relevant provisions with regard to the practice of attorneys, notaries and conveyancers it appears that certain formalities have to be complied with in order to entitle such practitioners to practise in the area of jurisdiction of this Court".
He further indicated, in the same letter, that
"accordingly the provisions of the Attorneys Act 53 of 1979 are applicable to the admission and practice of attorneys in this Court"
G and that the provisions of ss 20 and 21 of this latter statute were to be invoked by attorneys intending to practise within the area of jurisdiction of this Court in that they should immediately apply to him to be enrolled in terms of the aforementioned sections.
He also expressed the view that if they do not enrol as H required, they would not be entitled to practise in this area.
The applicant has joined issue with the respondent in this regard and holds the view stated hereinbefore. Accordingly he has not applied to the respondent to have his name enrolled and contends that he is entitled to practise without doing so.
Before considering the merits of the disputes in this matter, it may be best, at this stage, to refer to the provisions of the aforementioned ss 20 and 21 of Act 53 of 1979 as well as some further provisions and
Pickard J
enactments which may be of assistance. They are the following:
A. Sections 20 and 21 of Act 53 of 1979.
"20 Enrolment...
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