THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 1255/2019
In the matter between:
THE SOUTH AFRICAN LEGAL
PRACTICE COUNCIL                                                          APPELLANT
and
REEVA-JOY ALVES

FIRST RESPONDENT
MITCHELL DE BEER                                      SECOND RESPONDENT
ETIÈNNE MENTOOR                                          THIRD RESPONDENT
JANDRÈ ROBBERTZE                                   FOURTH RESPONDENT
ZELEK SING                                                         FIFTH RESPONDENT
STACEY SUNDELSON                                        SIXTH RESPONDENT
MICHAEL MULLER VAN STADEN          SEVENTH RESPONDENT
DAVID WHITCOMB                                        EIGHTH RESPONDENT
ADRI THIART                                                      NINTH RESPONDENT

Neutral citation: The South African Legal Practice Council v Alves and
Others (Case no 1255/2019) [2020] ZASCA 170
(14 December 2020)
Coram:
MAYA P, SALDULKER and PLASKET JJA and EKSTEEN
and UNTERHALTER AJJA

Heard:
13 November 2020
Delivered: This judgment was handed down electronically by circulation to the parties'
representatives via email, publication on the Supreme Court of Appeal
website and release to SAFLII. The date and time for hand-down is deemed
to be 10h00 on 14 December 2020.
Summary: Legal Practice Act 28 of 2014 – legal practitioners to be admitted
and enrolled either as advocate or attorney – s 115 preserves the right of any
person who qualified for admission as an advocate, attorney, conveyancer or
notary prior to the commencement of the Act to be so admitted thereafter –
preservation of right extends ad infinitum – s 32 empowers Legal Practice
Council to convert enrolment of a legal practitioner without recourse to the
high court – s 32 does not detract from jurisdiction of the high court to order
the Legal Practice Council to enrol a legal practitioner as an advocate where
the practitioner qualifies for enrolment as such in terms of the Legal Practice
Act.

_______________________________________________________________________

ORDER
_____________________________________________________________
On appeal from: Western Cape Division of the High Court, Cape Town
(Hlophe JP and Baartman J, sitting as court of first instance):

The appeal is dismissed.

_____________________________________________________________
JUDGMENT
_____________________________________________________________
Eksteen AJA (Maya P, Saldulker and Plasket JJA and Unterhalter AJA
concurring)

[1] The crisp issue in this appeal is whether the first to the ninth
respondents (to whom I shall refer, for convenience, as applicants), who had
all been admitted and enrolled as attorneys, were entitled to rely on the
provisions of s 115 of the Legal Practice Act 28 of 2014 (the LPA) in order to
be enrolled as advocates. The Western Cape Division of the High Court, Cape
Town (the high court) ruled in their favour and ordered the South African
Legal Practice Council (the LPC) to remove their names from the roll as
attorneys and to enrol them as advocates. The appeal against this ruling is with
leave of the high court.

[2] Prior to the hearing of the appeal, the second to ninth applicants all
completed their pupillage at the Cape Bar and the LPC approved the

conversion of their enrolment as attorneys to advocates in terms of s 32 of the
LPA. The appeal is accordingly moot in respect of these applicants. However,
it remains live in respect of the first applicant. She has taken no part in the
appeal and indicated that she would abide the decision of this Court. In
addition the Cape Bar sought and obtained leave to be heard as amicus curiae.

[3] At the time of the application each of the applicants were, as I have said,
attorneys who wished to practice as advocates. Seven of them had been
admitted as attorneys prior to 1 November 20181 in terms of the Attorneys Act
53 of 1979 (the Attorneys Act). The remaining two (the sixth and ninth
applicants) were admitted and enrolled as attorneys in terms of the LPA after
it came into operation. Only the first applicant had applied to the LPC, before
the application to court, for her enrolment to be converted to that of an
advocate in terms of s 32 of the LPA. Her application was refused as she did
not meet the requirements laid down by the LPC in its rules. In particular, she
had not completed a trial advocacy programme.2 Hence her application to
court.

[4] In her application she relied on the provisions of s 115 of the LPA, as
did the remaining applicants. Section 115 is to be found under Chapter 10 of
the
LPA
headed
‘NATIONAL
FORUM
AND
TRANSITIONAL
PROVISIONS’. The section provides:

1 The LPC came into full operation on 1 November 2018. Chapter 10 (Transitional provisions) had previously
come into operation on 1 February 2015.
2 Section 32(3) of the LPA empowers the LPC to make rules setting out the circumstances under which a
legal practitioner may apply for conversion of his or her enrolment under that section and to lay down any
requirements which such practitioner must comply with.

‘Any person who, immediately before the date referred to in section 120(4), was entitled
to be admitted and enrolled as an advocate, attorney, conveyancer or notary is, after that
date, entitled to be admitted and enrolled as such in terms of this Act.’
The date referred to in the section is 1 November 2018, the date on which the
LPA became fully operational.

[5] The interpretation of this provision in the context of the LPA lies at the
heart of the appeal. The principles applicable to the interpretation of
documents, including statutes, are well settled. It is however useful to restate
the essence of the principles as summarised in Natal Joint Municipal Pension
Fund v Endumeni Municipality3 para 18, where this Court stated:
‘Interpretation is the process of attributing meaning to the words used in a document, be it
legislation, some other statutory instrument, or contract, having regard to the context
provided by reading the particular provision or provisions in the light of the document as a
whole and the circumstances attendant upon its coming into existence. Whatever the nature
of the document, consideration must be given to the language used in the light of the
ordinary rules of grammar and syntax; the context in which the provision appears; the
apparent purpose to which it is directed and the material known to those responsible for its
production. Where more than one meaning is possible each possibility must be weighed in
the light of all these factors. The process is objective not subjective. A sensible meaning is
to be preferred to one that leads to insensible or unbusinesslike results or undermines the
apparent purpose of the document.’

[6] It is convenient first to consider the circumstances which gave rise to
the promulgation of the LPA. For centuries, South Africa had been served by
a divided legal profession. Prior to the LPA, the admission of advocates was
governed by the Admission of Advocates Act 74 of 1964 (the Advocates Act).

3 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] All SA 262 (SCA); [2012]
ZASCA 13; 2012 (4) SA 593.

Section 3 of the Advocates Act required an applicant for admission to
establish that they were more than 21 years of age, duly qualified, a fit and
proper person and a South African citizen. Generally speaking, the
qualification required was an LLB degree obtained from a South African
university. No further training was required in order to practice.

[7] For many years advocates were organised in various voluntary
associations regulated by their respective Bar Councils and affiliated to the
General Council of the Bar of South Africa (the GCB). The Bars were self-
regulated and the GCB was a federal body established by the Bars. There was
no statutory regulatory body. The Bars developed a comprehensive pupillage
system to provide vocational training and education to aspirant members.
However, advocates were not obliged to be members of a Bar affiliated to the
GCB. Various other associations of advocates were established which were
not affiliated to the GCB. Some offered vocational training of their own and
others did not. Moreover, because the Advocates Act did not oblige advocates
to belong to an association a number of admitted advocates practiced outside
of any association, without any vocational training and free from any
regulation.

[8] By contrast attorneys were regulated by law societies, established by
statute, and all attorneys were subject to regulation by these bodies. The
Attorneys Act required candidate attorneys who had obtained an LLB degree
or BProc degree from a South African university to undergo two years of
articles and to pass an admission examination prior to their admission as
attorneys. There was accordingly a marked disparity between the admission
requirements for advocates and attorneys.

[9] Once admitted as an advocate or as an attorney, a practitioner seeking
to convert from one branch of the profession to the other was required first to
obtain an order of court removing their name from the roll of one branch and
re-enrolment on the other. When an advocate wanted to become an attorney
they were required, irrespective of their experience, to first undergo a period
of articles before they could be admitted as such. An attorney seeking to
become an advocate was entitled (subject to what is set out later) to their
immediate admission as such. However, if they wished to practice at a Bar
affiliated to the GCB, they were often required by the Bar Council concerned
to undergo a period of pupillage before they could obtain membership. These
inequalities and perceived obstacles to entry into the profession and transfer
between the branches thereof, together with other issues not material to the
present debate, gave rise to the LPA.4 One of the principal purposes of the
LPA was to create a single unified statutory body to regulate the affairs of all
legal practitioners and all candidate legal practitioners in pursuit of the goal
of an accountable, efficient and independent legal profession.5 It also sought
to level the playing field by prescribing compulsory vocational training and a
competency-based examination or assessment prior to admission and
enrolment for both advocates and attorneys.6

[10] The LPA does not purport to merge the functions of advocates and
attorneys. It maintains the distinction between advocates and attorneys and
acknowledges the different training required for these functions. Thus, a
‘pupil’ is defined in the LPA as a person undergoing practical vocational

4 The purpose of the LPA is set out in s 3 thereof.
5 Section 3(c).
6 Section 26(1)(d).

training with a view to being ‘admitted and enrolled’ as an advocate.7 An
‘advocate’ is likewise defined as a legal practitioner who has been ‘admitted
and enrolled as such’ under the LPA.8 Advocates and attorneys collectively
are referred to as ‘legal practitioners’. Thus, the latter term is defined in the
LPA as meaning an advocate or attorney admitted and enrolled as such in
terms of s 24 and 30 respectively.9 The distinction is material.

[11] The admission of all legal practitioners, both advocates and attorneys,
is governed by the provision of s 24. It stipulates that no one may practice as
a legal practitioner (that is either as an advocate or as an attorney) if they are
not admitted and enrolled to practice ‘as such’ in terms of the LPA. The LPA
does not provide for practice as a legal practitioner. It provides for three forms
of practice, as an attorney, as an advocate practicing on a referral basis only
and as an advocate accepting work directly from the public.10 Section 24
accordingly requires a court to admit a legal practitioner either as an advocate
or as an attorney and to authorise the LPC to enrol them as such.

[12] The maintenance of a roll of legal practitioners is entrusted to the LPC.
In doing so it was required at the commencement of the LPA to consolidate
the rolls of admitted attorneys and advocates which existed prior to the LPA
into one roll11 referred to in s 30(3). New entrants to the profession are
required to apply to the LPC for enrolment against payment of a prescribed

7 A ‘candidate attorney’ is similarly defined as a person undergoing vocational training with a view to being
‘admitted and enrolled as an attorney’.
8 ‘Attorney’ bears a corresponding meaning.
9 ‘Candidate legal practitioner’ is similarly defined as being persons undergoing vocational training either as
a candidate attorney or as a pupil.
10 Section 34.
11 Section 114.

fee.12 Once a legal practitioner has been admitted and acquired the authority
of the high court to be enrolled, they are entitled to be enrolled as such, subject
to payment of the prescribed fee, and the LPC has no discretion to decline
enrolment. The roll must reflect the form of practice pursued by the
practitioner and the particulars of the order of court in terms of which they
were admitted.13

[13] The LPA regulates the professional conduct and disciplinary
proceedings in respect of legal practitioners.14 It is, however, only the high
court that can strike their name from the roll of legal practitioners15 and it
retains the jurisdiction to adjudicate upon and make orders in respect of
matters concerning the conduct of legal practitioners.16

[14] All of these provisions reinforce the fact that legal practitioners,
whether practicing as advocates or attorneys, are officers of the high court.
They are admitted by the court which authorises their enrolment in the practice
in which they are qualified and they owe a special ethical duty to the court.
The high court retains the oversight over their conduct and the jurisdiction to
pronounce on matters concerning their conduct. To this extent they practice
under the auspices of the high court.

[15] Against this background, the provisions of s 115 must be construed in
the context of the LPA as a whole, with due regard to the history giving rise

12 Section 30(1)(b)(i).
13 Section 30(3)(a) and (b).
14 Chapter 4 s 36-44.
15 Section 40(3)(a)(iv).
16 Section 44.

to its existence and the purpose to which it is directed. On behalf of the
appellant three arguments were advanced as to why the applicants could not
avail themselves of the provisions of s 115. Firstly, it was contended that on a
proper construction of the LPA, s 115, being a transitional provision, applied
only to applications for admission which were pending on 1 November 2018.
As none of the applicants had lodged an application for admission prior to the
commencement of the LPA, s 115 did not apply to them. Secondly, save for
the sixth and ninth applicants, who were admitted as attorneys after the LPA
came into effect, the remaining applicants did not qualify for admission as
advocates under the Advocates Act immediately before 1 November 2018
because the Advocates Act required that an attorney had first to remove their
name from the roll of attorneys before being able to qualify for admission as
an advocate. They had not done so. Thirdly, it was argued that the LPA placed
the process of enrolment in the hands of the LPC, including the conversion of
an enrolment, and accordingly, where an applicant sought to convert their
enrolment from that of an attorney to an advocate they were obliged to do so
in terms of s 32 of the LPA. The result, it was contended, was that the high
court did not have the jurisdiction to make the order which it did.

[16] Section 115 is set out earlier. Ordinarily where the legislature intends
that a transitional provision would apply only to proceedings commenced
prior to the promulgation of the Act concerned it says so in terms. An example
of such a provision is found in s 116(2) of the LPA which provides:
‘Any proceedings in respect of the suspension of any person from practice . . . which have
been instituted in terms of any law repealed by this Act, and which have not been concluded
at the date referred to in section 120(4), must be continued and concluded as if the law had
not been repealed . . .’

[17] No similar intention appears from the provisions of s 115. On the
contrary, s 115 applies to any person who immediately before the
commencement of the LPA was entitled to be admitted and enrolled as an
advocate, attorney, conveyancer or notary. It contains no limitation to this
right. On a consideration of the language used in the light of the ordinary rules
of grammar and syntax the section must be interpreted to mean that ‘whoever
can show that they satisfied the criteria in s 3 of the [Advocates Act] and, had
an application been made whilst the [Advocates Act] was still in force, were
entitled to admission’.17 The purpose to which the section is directed is to
preserve the rights of those who qualified for admission and enrolment prior
to the LPA to be admitted and enrolled thereafter under the LPA. Mr Koen,
on behalf of the LPC, was constrained to acknowledge that the interpretation
contended for by the LPC would require a considerable reading-in to the
section of words which do not appear therein. The reading-in would require,
in relevant part, that s 115 is interpreted to mean: ‘Any person who,
immediately before the date referred to in s 120(4), had made an application
and was entitled to be admitted and enrolled’.  He contended, that reading-in
such additional words was the only manner in which to give meaning to the
section as a transitional arrangement. The argument cannot be sustained.
Section 115 finds application in respect of candidates who qualified for
admission prior to commencement of the LPA. It preserves their right to be
admitted under the LPA. The position was captured thus by Robeson J in Ex
parte Bakkes and Similar Cases:18
‘I am respectfully of the view that there is no ambiguity in s 115 of the LPA. It is clear
from the section that persons who qualified for admission in terms of the AAA prior to

17 See Ex Parte Goosen and Others [2019] ZAGPJHC 68; 2019 (3) SA 489 (GJ) para 51.
18 Ex Parte Bakkes and Similar Cases [2019] ZAECGHC 3; 2019 (2) SA 486 (ECG) para 12.

1 November 2018 are entitled to be admitted and enrolled as advocates. The reference to
admission and enrolment “in terms of this Act” means in my view nothing more than that
the LPA may be used as a vehicle for the admission of such persons, given that the AAA
has been repealed. To require such a person to satisfy the requirements of the AAA and the
LPA in order to be admitted, would unfairly require such persons to be dually qualified,
and would negate the provision in the section that they are entitled to be admitted and
enrolled if they were so entitled prior to 1 November 2018. This could not have been the
intention of the legislature.’

[18] The vast majority of candidates for admission may be expected to be
young persons setting out upon a career in the practice of law, who have
acquired their qualifications in the not too distant past. Section 115 may
indeed be relied upon ad infinitum by any person who qualified prior to the
commencement of the LPA, however, the legislature must be taken to have
foreseen this when preserving their rights. The numbers of such people will
be relatively small and would inevitably dwindle and eventually disappear. It
is in this respect that the provision is transitional.19

[19] I turn to the second argument advanced on behalf of the LPC. Section 3
of the Advocates Act sets out the requirements which had to be met for
admission as an advocate under that Act. It required an applicant who had
previously been admitted to practice as an attorney to satisfy the court, inter
alia, that their name had been removed from the roll of attorneys on their own
application.20 It was a prerequisite for admission as an advocate. The
requirement had a history of its own which developed from the divided
profession which existed in South Africa prior to the LPA. When the

19 Ibid para 13.
20 Section 3(1)(d) of the Advocates Act.

Advocates Act was first enacted s 3(1)(d) contained, after the words ‘. . . on
his own application’, the following:
‘. . . and that for a continuous period of not less than six months immediately before the
date of his application to be so admitted he has in no way been associated or connected
with the practice of, or acted directly or indirectly as, an attorney, notary or conveyancer
in the Republic or elsewhere . . .’21

[20] The rule originally arose from a judicial practice developed in the early
1900s of a ‘cooling off’ period.22 The requirement was however deleted from
the Advocates Act by s 16 of the General Law Amendment Act 29 of 1974.
Thereafter a practice developed for attorneys who wished to be admitted as
advocates to seek in one application the simultaneous removal of their name
from the roll of attorneys and their admission as an advocate.

[21] I revert to the provisions of s 115. In Goosen the full court correctly
considered the meaning of ‘entitled’ in the section. It held:23
‘The word “entitled” is a common enough term. “Entitled to be admitted and enrolled” is
the phrase to be given meaning. The concept of an entitlement is consistent only with the
existing possession of a right. The Oxford English Dictionary . . . defines the term as the
giving of a “rightful claim” to anything. The term “entitled” in the context of s 115, and
indeed the context of the LPA has no convoluted inner, obscure meaning. It is simply
shorthand for saying that the candidate fulfilled all the [Advocates Act] . . . criteria at a
time when that candidate could have brought an application, ie before 1 November 2018.
As the “right” to which a candidate is “entitled” is extinguished on 31 October 2018, the
answer to the question whether one can apply after 31 October 2018, is answered purely

21 See In Re Rome 1991 (3) SA 291 (A) at 308C-D.
22 See Ex Parte Plowden-Wardlaw 1903 TS 35; Ex Parte Beyers 1904 TS 567.
23 Goosen fn 16 above para 26.

by whether the substance of the rights in s 3 of the [Advocates Act] . . . can survive the
repeal. It is the function of s 115 to preserve those “entitlements” or “rights”.’

[22] So, were the applicants entitled prior to the commencement of the LPA
to their admission as advocates? It is common cause that each of the applicants
met all of the requirements of s 3 of the Advocates Act, save that their names
remained on the roll of attorneys. After the ‘cooling off’ period was removed
from the provisions of s 3 any admitted attorney who met the requirements for
admission as an advocate was entitled in one application to the removal of
their name from the roll of attorneys and their admission as an advocate. That
right the applicants acquired prior to the commencement of the LPA. To hold
otherwise would be overly technical and would undermine the purpose of the
section. For these reasons the second argument, too, cannot be sustained.

[23] The third argument advanced relates to the provisions of s 32 of the
LPA. Section 32 empowers the LPC to convert an enrolment from one form
of practice to another without recourse to the high court. The section is
designed to facilitate such movement and to eliminate the obstacles and
inequalities which previously impeded it. To that end the council is
empowered by subsec 32(3) to make rules setting out the circumstances under
which a legal practitioner may apply to it for conversion of their enrolment
and the requirements such legal practitioner must comply with. Thus the LPC
may, by its rules, enable experienced practitioners to move from one form of
practice to another, without undergoing all the vocational training prescribed
under s 26 for admission to and enrolment in such practice. As a matter of
logic, however, in my view, it cannot demand that an attorney seeking to
convert their enrolment to an advocate must first attain a greater qualification

than that set by the LPA for admission by the high court. To the extent that it
did so in respect of the first applicant it exceeded its powers.

[24] While s 32 does entrust the regulation of conversion to the LPC, its
power is not exclusive because legal practitioners under the LPA retain the
right to be enrolled as advocates under the preservation of rights in s 115.
There is nothing in s 32, or in the structure of the LPA as a whole, which
suggests that the high court is precluded from admitting, and authorising the
enrolment of, a practitioner  who previously practiced as an attorney, as an
advocate, in circumstances where the legal practitioner qualifies for admission
as an advocate in terms of the LPA. In these circumstances there is no basis
for the exercise of powers by the LPC under s 32. The conversion is in effect
done by the high court under the preservation provision. For the reasons set
out earlier the applicants all qualified for admission as advocates in terms of
s 115.

[25] There remains the issue of costs. The appeal is a matter of considerable
interest and importance to the legal profession in seeking clarity on the
interpretation of the LPA. In these circumstances, fairly, neither the LPC nor
the amicus curiae sought an order for costs.

[26] In the result the appeal is dismissed.

__________________________
J W EKSTEEN
ACTING JUDGE OF APPEAL

Appearances

For appellants:
S Koen
Instructed by:
Bisset Boehmke McBlain, Cape Town

Webbers, Bloemfontein

Amicus Curiae:
D Borgström SC (with him T Sarkas)
Instructed by:
Riley Incorporated
SUPREME COURT OF APPEAL SOUTH AFRICA
MEDIA SUMMARY – JUDGEMENT DELIVERED IN THE SUPREME COURT OF APPEAL
FROM         The Registrar, Supreme Court of Appeal
DATE         14 December 2020
STATUS     Immediate
Please note that the media summary is for the benefit of the media and does not form
part of the judgement of the Supreme Court of Appeal.
THE SOUTH AFRICAN LEGAL PRACTICE COUNCIL v REEVA-JOY
AND OTHERS (Case no 1255/19) [2020] ZASCA 170
______________________________________________________________________________
Today the SCA dismissed an appeal by The South African Legal Practice Council
(the LPC) against an order of the High Court, Cape Town, which directed it to
remove the names of the nine respondents from the roll of attorneys and to enroll
them as advocates.

The respondents had all been admitted and enrolled as attorneys and wished to be
advocates. They relied on s 115 of the Legal Practice Act 28 of 2014 (the LPA) to
assert their right to be enrolled as advocates. Section 115 of the LPA preserves the
right of any person who had qualified to be admitted as an advocate, under the
Admission of Advocates Act 74 of 1964, prior to the commencement of the LPA on
1 November 2018, to be admitted as an advocate thereafter.

The LPC contended, firstly, that on a proper interpretation of the LPA the section
applied only to applications for admission which had been launched before the LPA
came into effect; secondly, that the respondents did not qualify to be admitted as
advocates before the LPA came into effect because their names had not been
removed from the roll of attorneys, a prerequisite for admission as an advocate, at
that time; and thirdly, that once the respondents had been admitted as attorneys  the
LPA entrusted the regulation of the conversion  to the LPC to the exclusion of the
high court.

The SCA held that s 115 preserves the right of all persons who qualified before the
LPA came into effect to be admitted and enrolled at any time thereafter. It held
further, that before the LPA came into operation an attorney was entitled to move in
a single application for the removal of their name from the roll of attorneys and their
admission as an advocate. As this right accrued to the respondents before the LPA
came into operation they were entitled in terms of s 115 to their admission. In respect
of the LPC’s power of conversion, the SCA found that because the respondents’
right to admission as advocates had been preserved in terms of s 115 there was no
basis for the LPC to exercise any power of conversion and the high court effectively
performed the conversion in terms of s 115.