Independent Institute of Education (Pty) Ltd v KwaZulu-Natal Law Society and Others

• Jurisdiction: South Africa
• Citation: 2020 (2) SA 325 (CC)

Independent Institute of Education (Pty) Ltd v KwaZulu-Natal Law Society and Others
2020 (2) SA 325 (CC)

2020 (2) SA p325

Citation	2020 (2) SA 325 (CC)
Case No	CCT 68/19; [2019] ZACC 47
Court	Constitutional Court
Judge	Mogoeng CJ, Froneman J, Jafta J, Khampepe J, Madlanga J, Mathopo AJ, Mhlantla J, Theron J and Victor AJ
Heard	December 11, 2019
Judgment	December 11, 2019
Counsel	A Gabriel SC (with I Veerasamy, N Matshotyana and M Suleman) for the applicant.; M du Plessis SC (with A Coutsoudis and S Lushaba) for, and instructed by, the eighth respondent, the General Council of the Bar.

Flynote : Sleutelwoorde

Attorney — Admission and enrolment — Admission — Requirements — LLB degree obtained at 'university' — Whether private higher education institution accredited to offer and confer four-year LLB was university — Legal Practice Act 28 of 2014, s 26(1)(a).

Headnote : Kopnota

Applicant was a registered private higher education institution accredited to offer and confer four-year LLB degrees (see [4]). However, the KwaZulu-Natal Law Society decided it would not register the articles of applicant's graduates (see [6]). In its view the meaning of 'university' in the Higher Education Act 101 of 1997, which excluded applicant, was the meaning of that word in s 26(1)(a) of the Legal Practice Act 28 of 2014, which states that '(a) person qualifies to be admitted and enrolled as a legal practitioner, if that person . . . has satisfied all the requirements for the LLB degree obtained at any university registered in the Republic' (see [8] – [9]). Applicant's graduates would not meet this requirement since their LLB would not be from a 'university'.

The decision caused applicant to approach the High Court which, like the Law Society, reasoned that the meaning of 'university' in s 26(1)(a) should be the same as the meaning of that word in the Higher Education Act and, on this interpretation, it declared s 26(1)(a) constitutionally invalid (see [10] – [11]).

Here applicant applied to the Constitutional Court for it to confirm this declaration. It declined to do so (see [34]). This was on the basis that the ordinary meaning should be given to 'university' rather than that of the Higher Education Act. On this meaning applicant was a 'university' (see

2020 (2) SA p326

[13], [19] and [25]). So interpreted, s 26(1)(a) was saved from inconsistency with the Constitution (see [22]).

The order of the High Court not confirmed, and applicant's graduates declared to be eligible for enrolment and admission under the Legal Practice Act (see [34]).

The concurring judgment considers the relationship between the rule that a statute should be interpreted to be consistent with other statutes, and the contextual approach to interpretation (see [37] and [38]). It describes how other legislation forms part of the external context of the statute being interpreted, such, in this case, that the Higher Education Act would be part of s 26(1)(a)'s context (see [42] – [43]). However, it records that using the Higher Education Act's definition of university in s 26(1)(a) would limit the constitutional rights of applicant's students, and that this necessitates that consistency of s 26(1)(a) with the Higher Education Act be trumped by the need for consistency with the Constitution (see [46] – [47] and [50]). The limitation would be that the constitutionally compliant interpretation should not 'unduly strain' the words in issue (see [51]). Here the meaning the first judgment gave 'university' would not unduly strain that word (see [53]).

Cases cited

Abahlali BaseMjondolo Movement SA v Premier of the Province of KZN 2010 (2) BCLR 99 (CC) ([2009] ZACC 31): referred to

Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC) (2005 (6) BCLR 529; [2005] ZACC 3): referred to

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (4) SA 490 (CC) (2004 (7) BCLR 687; [2004] ZACC 15): referred to

Canca v Mount Frere Municipality 1984 (2) SA 830 (TkS): referred to

Chotabhai v Union Government (Minister of Justice) and Registrar of Asiatics 1911 AD 13: referred to

Commander v Collector of Customs 1920 AD 510: referred to

Cool Ideas 1186 CC v Hubbard and Another 2014 (4) SA 474 (CC) (2014 (8) BCLR 869; [2014] ZACC 16): referred to

Department of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd 2007 (6) SA 199 (CC) (2007 (10) BCLR 1027; [2007] ZACC 12): referred to

Harksen v Lane NO and Others 1998 (1) SA 300 (CC) (1997 (11) BCLR 1489; [1997] ZACC 12): referred to

Independent Institute of Education (Pty) Ltd v KwaZulu-Natal Law Society and Others 2019 (4) SA 200 (KZP): not confirmed

Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2001 (1) SA 545 (CC) (2000 (2) SACR 349; 2000 (10) BCLR 1079; [2000] ZACC 12): referred to

Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) ([2012] 2 All SA 262; [2012] ZASCA 13): referred to

Phaahla v Minister of Justice and Correctional Services and Another 2019 (2) SACR 88 (CC) (2019 (7) BCLR 795; [2019] ZACC 18): referred to

Principal Immigration Officer v Bhula 1931 AD 323: referred to

Prinsloo v Van der Linde and Another 1997 (3) SA 1012 (CC) (1997 (6) BCLR 759; [1997] ZACC 5): referred to

Road Traffic Management Corporation v Waymark Infotech (Pty) Ltd 2019 (5) SA 29 (CC) (2019 (6) BCLR 749; [2019] ZACC 12): referred to

2020 (2) SA p327

Ruta v Minister of Home Affairs 2019 (2) SA 329 (CC) (2019 (3) BCLR 383; [2018] ZACC 52): referred to

S v Liesching and Others 2017 (2) SACR 193 (CC) (2017 (4) BCLR 454; [2016] ZACC 41): dictum in para [33] applied

Saidi and Others v Minister of Home Affairs and Others 2018 (4) SA 333 (CC) (2018 (7) BCLR 856; [2018] ZACC 9): referred to

Shaik v Minister of Justice and Constitutional Development and Others 2004 (3) SA 599 (CC) (2004 (1) SACR 105; 2004 (4) BCLR 333; [2003] ZACC 24): referred to

South African Police Service v Public Servants Association 2007 (3) SA 521 (CC) ([2007] 5 BLLR 383; [2006] ZACC 18): referred to.

Legislation cited

The Legal Practice Act 28 of 2014, s 26(1)(a): see Juta's Statutes of South Africa 2018/19 vol 7 at 5-95.

Case Information

A Gabriel SC (with I Veerasamy, N Matshotyana and M Suleman) for the applicant.

M du Plessis SC (with A Coutsoudis and S Lushaba) for, and instructed by, the eighth respondent, the General Council of the Bar.

An application to confirm a High Court's declaration that s 26(1)(a) of the Legal Practice Act 28 of 2014 was constitutionally invalid.

Order

1.

The order by the KwaZulu-Natal Division of the High Court, Pietermaritzburg, that s 26(1)(a) of the Legal Practice Act 28 of 2014 is constitutionally invalid, is not confirmed.

2.

It is declared that a Bachelor of Laws graduate of the Independent Institute of Education (Pty) Ltd is eligible for admission and enrolment as a legal practitioner in terms of the Legal Practice Act 28 of 2014.

3.

The KwaZulu-Natal Law Society must pay the costs of the Independent Institute of Education (Pty) Ltd in this court and in the High Court, including costs of two counsel.

Judgment

Mogoeng CJ (Jafta J, Khampepe J, Madlanga J, Mathopo AJ, Mhlantla J and Victor AJ concurring):

[1] It would be a woeful misrepresentation of the true character of our constitutional democracy to resolve any legal issue of consequence without due deference to the pre-eminent or overarching role of our Constitution. [1]

2020 (2) SA p328

Mogoeng CJ (Jafta J, Khampepe J, Madlanga J, Mathopo AJ, Mhlantla J and Victor AJ concurring)

[2] The interpretive exercise is no exception. For, s 39(2) of the Constitution dictates that 'when interpreting any legislation . . . every court, tribunal, or forum must promote the spirit, purport and objects of the Bill of Rights'. Meaning, every opportunity courts have to interpret legislation must be seen and utilised as a platform for the promotion of the Bill of Rights by infusing its central purpose into the very essence of the legislation itself.

[3] And this is what this application is really about — giving an interpretation to a legislative provision primarily concerned about its consistency, not with another legislation but with the Bill of Rights. This should be done in recognition of the ever-abiding guiding or instructive hand of our Constitution.

Background

[4] The Independent Institute of Education (Pty) Ltd (Institute) is a duly registered private higher education institution. It has also been accredited to offer and confer a four-year Bachelor of Laws (LLB) degree on its graduates. It is common cause that its LLB programme meets the same requirements and standards set for public universities.

[5] And when the South African Qualification Authority gave accreditation to the Institute's LLB programme, it pointed out that one of the degree's stated objectives was to equip prospective graduates for 'the professional practice of law and the administration of justice in the modern South African constitutional state' and that 'graduates will be able to apply for admission as legal practitioners'.

[6] That notwithstanding, the KwaZulu-Natal Law Society (Law Society) took the position that it would not register articles of clerkship of aspirant attorneys with LLB degrees from the likes of the Institute. Here is why.

[7] Section 26 of the Legal Practice Act provides in relevant part:

'(1) A person qualifies to be admitted and enrolled as a legal practitioner, if that person has —

(a)

satisfied all the requirements for the LLB degree obtained at any university registered in the Republic, after pursuing for that degree

(i)

a course of study of not less than four years...