IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA Mabaso v Law Society of the Northern Provinces and Another
CCT 76/03 Decided on 5 October 2004
Media Summary
The following media summary is provided to assist in reporting this case and is not binding on the Constitutional Court or any member of the Court.
In a unanimous judgment handed down today, the Constitutional Court declares section 20(1) of the Attorneys Act, 53 of 1979 (Attorneys Act) to be inconsistent with the Constitution and invalid because it unfairly discriminates against attorneys admitted in the former “homelands”.
Mr Mabaso, the applicant, successfully sought to be enrolled as an attorney in terms of section 20 of the Attorneys Act. However the Law Society opposed his enrolment.
Its opposition should have constituted a bar to that enrolment. When the Law Society discovered that he had been enrolled in terms of section 20 despite its objection, it approached the Pretoria High Court (High Court) for an order removing his name from the roll. The applicant opposed this relief on several grounds, including on the basis that section 20 was unconstitutional. The High Court granted the order sought by the Law Society and dismissed the applicant’s opposition including his application for an order declaring section 20 to be inconsistent with the Constitution. The applicant unsuccessfully sought leave to appeal to the Supreme Court of Appeal (SCA). The applicant failed to comply with the rules of the SCA, the court refused to condone this non-compliance and as a result his appeal failed.
Section 20 of the Attorneys Act provides a short-cut route to enrolment for attorneys who have already been admitted “under this Act”. In effect, this short-cut route is therefore available only to attorneys in the former Republic of South Africa admitted under the Attorneys Act. It excludes attorneys admitted in terms of other legislation in the former “homelands”. The applicant was admitted in terms of the Attorneys, Notaries and Conveyancers Act of the former Bophutatswana.
Justice O’Regan, writing for a unanimous Court, notes that the applicant incorrectly framed his appeal in terms of the old rules of the Constitutional Court. However, as the applicant attempted to comply with the old rules and the new rules had only just come into force, the Court condones his error.
There are two issues in the application for leave to appeal. The first relates to the High Court decision removing the applicant from the roll of attorneys, and the second to the constitutional challenge to section 20. The Court notes that law societies have a duty
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to ensure that practitioners conduct themselves with integrity, and that courts will be astute to ensure that candidates to be admitted as attorneys are fit and proper persons.
The Court therefore holds that it is in the interests of justice to grant leave to appeal in relation to the constitutional challenge to section 20. It holds that in excluding attorneys admitted under “homeland” legislation from benefiting under the provisions of section 20, the Attorneys Act clearly discriminates between those attorneys admitted in terms of homeland legislation and those admitted in terms of the Attorneys Act.
The Court grants an order which reads words in to section 20 so as to permit attorneys admitted in the former “homelands” also to benefit from the short-cut procedure it provides.
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