REPUBLIC OF SOUTH AFRICA

IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

REPORTABLE
Case number: 559/02

In the matter between:

HECTOR ERNEST THEMBA HEROLD MABASO
Appellant

and

LAW SOCIETY OF THE NORTHERN PROVINCES                Respondent

CORAM:

MPATI DP, HARMS, SCOTT,

ZULMAN JJA and MOTATA AJA

HEARD:

13 NOVEMBER 2003

DELIVERED:
28 NOVEMBER 2003

Subject:  Effect of an objection i.t.o. s 20(3) of the Attorneys Act 59 of 1979
to an application for enrolment as attorney i.t.o. s 20(1)

____________________________________________________________

JUDGMENT
____________________________________________________________

MPATI DP:
[1] The respondent sought and obtained from the Transvaal Provincial
Division (De Vos J) an order setting aside the placing of the name of the
appellant on the roll of attorneys of that court by its Registrar, which was
placed on the roll of attorneys of that court pursuant to an application in
terms of s 20 (1) of the Attorneys Act 59 of 1979 (the ‘Act’).  The appellant
was also ordered to pay the respondent’s costs on the scale as between
attorney and client.
[2] On 25 April 2002 the court a quo granted the appellant leave to
appeal to this Court.  A notice of appeal was lodged on 21 May 2002 and,
in terms of rule 8(1) of the rules of this Court, the appellant was required to
lodge with the Registrar six copies of the record of the proceedings in the
court a quo within three months of the lodging of the notice of appeal.  He
failed, however, to comply with the provisions of rule 8(1), but was granted
an extension by the registrar, in terms of rule 8(2), to lodge the record by 2
October 2002.  The record was not lodged on that date with the result that
the appeal lapsed.

[3] It is common cause that an incomplete record was filed on 5
November 2002 together with a notice of application for condonation for its
late filing and for the reinstatement of the appeal.  Although the fact of the
incomplete record was brought to the attention of the appellant, no effort
was made by him to rectify the position.  Ultimately, the respondent’s
attorneys prepared and lodged the remaining portion of the record, which
contains relevant affidavits and documents.  The appellant also lodged an
application for condonation for the late filing of his heads of argument,
which were only filed on 17 June 2003 when they ought to have been filed

on or before 4 February 2003.
[4] Both condonation applications were opposed.  In its affidavit filed in
opposition to the appellant’s application for condonation in respect of the
late filing of his heads of argument the respondent avers that the
appellant’s conduct of this appeal has been characterised by delays and
non-compliance with the rules of this Court.  That averment is undoubtedly
correct, but to enumerate and deal with each and every one of those delays
and non-compliances will serve no useful purpose.  Only two instances
need mention, viz the failure to lodge the record by the extended date of 2
October 2002 and the lodging of an incomplete record.  As to the latter,
there is no explanation why an incomplete record was lodged and why no
steps were taken to rectify the shortcoming even after it was brought to the
appellant’s attention.  What is more, there is no explanation whatsoever
from the appellant for the period 14 October 2002 and 5 November 2002,
the former being the date upon which the incomplete record was received
by the appellant.  That really disposes of the matter (Beira v Raphaely-
Weiner and Others 1997 (4) SA 332 (SCA) 337 C-F), but because counsel
was invited to deal with the merits of the appeal in his argument in the
condonation application, I proceed to consider the prospects of success in
the proposed appeal.  A brief reference to the facts will be a convenient
starting point.
[5] The appellant was admitted and enrolled as an attorney by the
Bophuthatswana High Court on 14 June 2002 under and in terms of the
provisions of the Attorneys, Notaries and Conveyancers Act 29 of 1984 (the
‘Bophuthatswana Act’).  That Act regulated the attorneys’ profession in the
erstwhile Republic of Bophuthatswana.  It remains in force by virtue of

Schedule 6 of the Constitution of the Republic of South Africa Act 108 of
1996, which reads:
‘2(1) All law that was in force when the new Constitution took effect continues in force,
subject to –

(a)
any amendment or repeal;  and

(b)
consistency with the new Constitution.
(2)
Old order legislation that continues in force in terms of sub-item (1) –

(a)
does not have a wider application, territorially or otherwise, than it had
before the previous (interim) Constitution took effect unless subsequently
amended to have a wider application;  and

(b)
continues to be administered by the authorities that administered it when
the new Constitution took effect subject to the new Constitution.’
[6] During August 2001 the appellant lodged an application with the
registrar of the Natal Provincial Division in terms of s 20(1) of the Act for his
name to be placed on the roll of attorneys of that court.  A notice of his
application was served on the Law Society of Natal.  There was no
objection to the application and the appellant’s name was placed on the roll
of attorneys of the Natal Provincial Division on 18 September 2001.
[7] On 10 October 2001 the appellant applied to the Registrar of the
Transvaal Provincial Division, in terms of s 20(1) of the Act, for his name to
be placed on the roll of attorneys of that court.  Upon receipt of the notice of
the application the respondent lodged with the registrar an objection on the
basis that such application can only be made by a person who had been
admitted and enrolled under the Act.  Section 20(1) reads:
‘Any person admitted and enrolled as an attorney under this Act may in the manner
prescribed by subsection (2), apply to the registrar of any court other than the court by
which he was so admitted and enrolled to have his name placed on the roll of attorneys
… of the court for which such registrar has been appointed.’  (Emphasis added)

Section 20(3) provides:
‘A registrar receiving an application referred to in subsection (1) shall place the name of
the applicant on the roll of attorneys … kept by him in terms of s 21, unless an objection
in writing against it is lodged with him by the secretary of the society concerned within
21 days from the date of receipt of the application by the registrar.’  (Emphasis
added.)
[8] It is clear from the provisions of s 20(3) that where an objection
against an application by an attorney for the placing of his name on the roll
of attorneys of a particular court the Registrar of that court cannot enrol
such attorney until such time as the objection has been considered one
way or the other.  However, in spite of the respondent’s objection in the
instant case, the appellant’s name was so enrolled on 9 November 2001.  It
is not necessary to record here what occurred on that day.  Suffice it to say
that the respondent’s letter of objection was not placed before the Registrar
who considered the application and who subsequently placed the
appellant’s name on the roll of attorneys of the Transvaal Provincial
Division.  It was subsequent to being informed of the enrolment that the
respondent launched the application to remove the appellant’s name from
that roll.
[9] The first issue raised in this Court by Mr Poswa, for the appellant,
concerns the respondent’s locus standi.  It is argued that the respondent is
not a statutorily recognised body whose continued existence is ensured or
recognised by s 56 of the Act.  The Law Society, which has powers to
regulate the exercise of the attorneys’ profession in the area where the
appellant sought to be enrolled, is the Transvaal Law Society and is thus
the only entity, so it was argued, which could and should have launched the
application to set aside the placing, by the registrar, of the appellant’s name

on the roll of attorneys of the Transvaal Provincial Division.
[10] This argument is fallacious.  The respondent describes itself in the
founding affidavit as the Law Society of the Northern Provinces, which
came into existence ‘by Volksraadbesluit 1307 dated 10 October 1892’ and
which continued in existence ‘by virtue of the Constitution of the
Incorporated Law Society of the Transvaal Ordinance No 1 (Private) of
1905’ and continued further in existence by virtue of the Attorneys Act.  It is
true that the name of the respondent does not appear amongst the Law
Societies mentioned in s 56 of the Act, but on its letterhead and date stamp
and below the name of the respondent appears the words:  ‘Incorporated
as the Law Society of the Transvaal’ and the words: ‘Serving Gauteng,
Mpumalanga, Northern and North West Provinces’.  It can hardly be
disputed that the old Transvaal no longer exists, this since the advent of
our constitutional dispensation.  In my view, judicial notice can be taken of
the fact that the areas served by the respondent as indicated on its
letterhead now make up the biggest portion, if not all, of what used to be
known as ‘Transvaal’.  It was not suggested in this Court that there exists
any other body or entity in the area concerned that performs the functions
of the Law Societies as provided for in ss 58 and 59 of the Act other than
the respondent.  Section 57 of the Act provides that every practitioner who
practises in any province, whether for his own account or otherwise, shall
be a member of the society of that province.  Again there was no
suggestion that attorneys practising in the area of the registrar of the
Transvaal Provincial Division belong to a law society other than the
respondent.
[11] In any event, Mr Poswa conceded that at least the respondent is an

association of attorneys.  He conceded too, though reluctantly, that a
voluntary association of attorneys would have been entitled to launch the
application.  Cadit quaestio.
[12] In the respondent’s founding affidavit the deponent, Jan Petrus
Stemmett, who was at the time president of the respondent, alleges that on
receipt of the appellant’s application the appellant was requested to appear
before a meeting of the respondent’s council on 5 November 2001.  After a
discussion between the appellant and members of the respondent’s
counsel the appellant was advised that the respondent could not support
his application and that he had to lodge a substantive application in terms
of s 15 of the Act.  (Section 15 deals with the admission and readmission of
attorneys.)  Indeed, in a letter to the appellant dated 6 November 2002 the
respondent reiterated its stance that the appellant should apply under s 15
of the Act to be admitted as an attorney of the Transvaal Provincial
Division.  That stance clouded the real issue before the court a quo, which
was whether, because there was an objection to it, the enrolment of the
appellant by the registrar as an attorney of the Transvaal Provincial
Division in terms of s 20(1) of the Act was irregular and thus liable to be set
aside.
[13] I have already stated in para 8 above, as did the court a quo, that the
registrar is not empowered to enrol an applicant’s name in such
circumstances until the objection has been disposed of.  It follows that the
order of the court a quo cannot be interfered with.  The result is that there
are, in my view, no prospects of success on appeal.
[14] In the course of its judgment the court a quo considered an argument
advanced on behalf of the appellant that s 20(1) of the Act is inconsistent

with the Constitution.  The submission, in which counsel persisted in this
Court, was that the sub-section discriminates against persons who have
been admitted and enrolled as attorneys in the area of the former
Bophuthatswana Republic and under the Bophuthatswana Act.  Such
persons, it was correctly argued, cannot utilise the provisions of s 20(1) of
the Act should they wish to be enrolled as attorneys of any other court in
the country, because they would not have been admitted and enrolled
‘under this Act’, ie the Attorneys Act, whereas persons who have been
admitted as attorneys elsewhere in the country can do so.  The court a quo
found that the mere fact that ‘the administrative process in terms of section
20 is not available’ to the appellant – since he was admitted under the
Bophuthatswana Act – is ‘not discrimination let alone unfair discrimination’.
[15] Because there are no prospects of success on appeal, it is not
necessary to consider the correctness or otherwise of the finding of the
court a quo in relation to the constitutional issue.  I would, however,
recommend that legislative attention be given to the issue as soon as
possible so as to ensure uniformity and certainty in the attorneys’
profession.
[16] The application for condonation for the late filing of the record is
dismissed with costs, including the costs relating to the appeal.

L MPATI DP

CONCUR:
HARMS JA
SCOTT JA
ZULMAN JA
MOTATA AJA