Mabaso v Law Society, Northern Provinces, and Another

• Jurisdiction: South Africa
• Judge: Chaskalson CJ, Langa DCJ, Mokgoro J, Moseneke J, Ngcobo J, O'Regan J, Sachs J, Skweyiya J, Van Der Westhuizen J and Yacoob J
• Judgment Date: 05 October 2004
• Citation: 2005 (2) SA 117 (CC)
• Docket Number: CCT 76/03
• Hearing Date: 06 May 2004
• Counsel: The applicant in person. A T Lamey for the first respondent.
• Court: Constitutional Court

O'Regan J:

[1] The applicant seeks special leave to appeal against a judgment and order of the Supreme Court of Appeal (the SCA) handed down on J

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28 November 2003. The first respondent is the Law Society of the Northern Provinces, an association of attorneys incorporated as the A Law Society of the Transvaal. It applied successfully to the Pretoria High Court (the High Court) for an order removing the applicant's name from the roll of attorneys on the ground that the enrolment of the applicant by the Registrar of the High Court in terms of s 20 of the Attorneys Act 53 of 1979 (the Act) was incompetent. The applicant B launched a conditional counter-claim in the High Court seeking a declaration that s 20 of the Act is inconsistent with the Constitution. That counter-claim failed in the High Court. The applicant then sought leave to appeal to the SCA. He did not prosecute this application timeously or properly and the SCA refused his application for condonation. The SCA also concluded that it need not C consider the question of the constitutionality of s 20.

[2] Section 20 provides a short-cut procedure whereby attorneys who have been admitted and enrolled by a High Court in one province 'under' the Act may be enrolled by the Registrar of a High Court in D another province without launching a full application in that High Court. [1] However, s 20 does not permit attorneys admitted to practise under other legislation to follow this procedure. Attorneys, such as the

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applicant, who are admitted under the former Bophuthatswana legislation may therefore not avail themselves of A the short-cut provided for by s 20. This differentiation, the applicant argues, constitutes unfair discrimination as contemplated by s 9 of the Constitution and to this extent s 20 should be declared to be inconsistent with the Constitution.

[3] The ordinary procedure for admission and enrolment as an attorney is a substantive ex parte application under s 15 B of the Act. [2] A Court considering such an application must be satisfied that all the requirements set out in the Act have been met, and, in particular, that the

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applicant is 'a fit and proper person to be so admitted and enrolled'. This application is A a more costly and time-consuming procedure than the procedure provided for in s 20.

Facts

[4] The applicant was admitted as an attorney by the Bophuthatswana B High Court on 14 June 2001 after serving his period of articles in terms of the Attorneys, Notaries and Conveyancers Act 29 of 1984 of the former Bophuthatswana. During August 2001, the applicant lodged an application with the Registrar of the KwaZulu-Natal High Court in terms of which he sought enrolment as an attorney in KwaZulu-Natal under s 20 of the Attorneys Act. No objection was lodged to the application C and on 18 September 2001 the applicant was so enrolled. On 10 October 2001, the applicant launched an incomplete application for enrolment as an attorney with the Registrar of the High Court. The defects in the application were drawn to the attention of the applicant, and he then supplemented the application on 19 October 2001. D

[5] The first respondent considered the application and concluded that it was not necessary at that stage to investigate the series of complaints of unprofessional conduct that had been made against the applicant between 1998 and 2000, as s 20 of the Act did not apply to a person who had been admitted in terms of the Bophuthatswana legislation. The applicant was requested to appear E before a meeting of the council of the first respondent on 5 November 2001, which he did.

[6] At that meeting, the applicant was advised by the first respondent that it could not support his application and that he could only be enrolled in the northern provinces if he launched a substantive application for admission in terms of s 15 of the Act, at F which stage the first respondent would assess the application on its merits and consider whether he was a fit and proper person to be admitted. The following day the first respondent wrote to the applicant setting out this attitude. On the same day the first respondent also lodged an objection with the Registrar of the High G Court in terms of s 20(3) of the Act. The Registrar acknowledged receipt of the objection on the same day.

[7] On 9 November 2001, the applicant approached the Registrar of the High Court and asked for his name to be placed on the roll of attorneys in terms of s 20 of the Act. For some reason, at the time that he made that application, the first respondent's letter H of objection did not appear in the Court file, and the Registrar enrolled the applicant as an attorney. When it discovered this in December 2001, the first respondent immediately wrote to the Registrar asking for an explanation for the enrolment of the applicant in the light of its objection to his being enrolled. The first I respondent then launched urgent proceedings in the High Court on 1 March 2002 seeking an order setting aside the enrolment of the applicant.

[8] As stated above, the High Court granted an order in the terms sought by the first respondent. The High Court found that, on the facts, the first J

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respondent had lodged an objection to the enrolment of the applicant in terms of s 20 of the Act; and that, as a A matter of law, the filing of an objection by the relevant Law Society precluded the Registrar from enrolling an attorney in terms of s 20 and required, instead, the would-be enrolee to launch a substantive application in the High Court for admission and enrolment. The High Court also dismissed the applicant's constitutional challenge to s 20. De Vos J reasoned in this regard as follows: B

'I cannot see how the differentiation that is made between a person who was admitted in Bophuthatswana and now wants to become an attorney in the Transvaal, from any other person in South Africa, can ever be described as discrimination. The fact of the matter is the respondent can apply in terms of s 15 of the Act to this Court to C be so admitted. The mere fact that the administrative process in terms of s 20 [of the Act] is not available to him, is as far as I am concerned, not discrimination let alone unfair discrimination.' [3]

[9] The applicant then sought leave to appeal to the SCA and that was granted by the High Court. He lodged his notice of appeal on 21 May 2002, whereupon he was required within three months to D lodge the record of the proceedings in the High Court. [4] This the applicant failed to do. He was granted an extension to do so by the Registrar of the SCA, but once again failed to lodge the record within the stipulated period. His appeal then lapsed. E

[10] However, some time later, the applicant lodged an incomplete record together with an application for condonation for the late filing of the record and for the reinstatement of the appeal. Despite his attention being drawn to the defects in the record, the applicant did not remedy them. Finally, the first respondent's attorneys prepared and lodged the missing parts of the record. The F applicant also lodged his heads of argument some four months late. After considering the explanation tendered by the applicant for his non-compliance, the SCA concluded that his applications for condonation should not be granted. In his judgment, Mpati DP, on behalf of a unanimous Court, then went on to consider the merits of the application for leave to appeal and concluded that they bore no prospects of G success in relation to whether the Registrar's enrolment of the applicant was competent. In relation to the constitutional relief sought by the applicant in respect of s 20 of the Act, Mpati DP concluded that, as

'there are no prospects of success on appeal, it is not necessary to consider the correctness or otherwise of the finding of the Court H a quo in relation to the constitutional issue'. [5]

[11] The applicant now seeks leave to appeal to this Court against the judgment and order made by the SCA. Before turning to the questions I

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that his application raises, I should point out that the applicant launched the application in this Court on 31 December A 2003 in terms of Rule 20 of the Rules of this Court promulgated on 29 May 1998. [6] However, at the time he launched his application these Rules had been superseded by Rules promulgated on 31 October 2003, [7] which came into effect on 1 December 2003. Under the new Rules, applications for leave to appeal against the decisions of all courts B are regulated by Rule 19. In the circumstances, the application was procedurally flawed. Given the fact that the new Rules had only just been published and brought into force, and the fact that the first respondent has suffered no prejudice as a result of the applicant's incorrect procedure, the Court is prepared to condone his error. C

[12] This is not the only procedural defect in his application. Whenever the constitutionality of an Act of Parliament is challenged, Rule 5 requires the party challenging the constitutionality within five days of lodging his application with the Registrar of this Court to take steps to join the authority responsible for the administration of that law. [8] The applicant failed to join the D Minister for Justice and Constitutional Development who is responsible for the administration of the Act. Rule 5 is a new Rule. The former Rule required only service of the application on the Minister which the applicant did. [9]

[13] Rule 5 is an important Rule. In a constitutional democracy, a Court should not declare the acts of another arm of government to be E inconsistent with the Constitution without ensuring that that arm of government is given a proper opportunity to consider the constitutional challenge and to...