Ex parte Oster

• Jurisdiction: South Africa
• Judge: Hiemstra CJ
• Judgment Date: 28 June 1982
• Citation: 1982 (4) SA 317 (B)
• Hearing Date: 28 June 1982
• Court: Bophuthatswana Supreme Court

Hiemstra CJ:

B The applicant is a South African citizen who applies for admission as an advocate of this Court. The South African Admission of Advocates Act 74 of 1964 is still part of the law of Bophuthatswana, mutatis mutandis. In his petition the applicant stated that his courses of study included 'one course in the English language and one course in the Latin language'. No mention was made of Afrikaans.

C When the case was called his counsel, Mr M Lowe, drew the Court's attention to the fact that the applicant's university studies did not include Afrikaans. Section 2 (1) of the Act provides:

'(1) After the commencement of this Act no person shall be admitted to practise as an advocate save in accordance with the provisions of this Act.'

D The provisions of this Act include s 3 (1) (b), that the applicant must be 'duly qualified'. In terms of s 3 (2) (a) (i) the applicant must possess the degree of baccalaureus legum. The curriculum must include one course in each of the languages Afrikaans, English, and Latin.

Mr Lowe referred to s 3 (2) (d) of the Act, which provides that a person answering to the following description can be admitted: E

'(d) any person who -

(i)

at the commencement of this Act was registered as a student at any university or university college in the Republic for the degree of baccalaureus legum; and

(ii)

has satisfied all the requirements for the said degree.'

F This provision was intended to accommodate persons who had already registered for a course of study which would, as the law then stood, have qualified them for admission as advocates. The Act came into operation on 18 February 1966, but the applicant registered at a university three days too late to claim the benefit of ss (d). It was suggested that the Court should condone the deficiency in the G applicant's qualifications because he was only three days past the finishing line.

Where a statute is peremptory as this one is ('no person shall be admitted') there is no principle of construction permitting a Court to overlook the specific injunction. The leader of the Bar was inclined not to take the point and suggested that the Court should 'condone' the three days. It is however not a procedural provision. It is one of H substance and the Court is not authorised to overlook it. In addition...