The Republic of South Africa
THE SUPREME COURT OF APPEAL
reportable
Case no:   120/99
In the matter between
JOAQUIM AUGUSTO DE FREITAS
First Applicant
INDEPENDENT ASSOCIATION OF
ADVOCATES OF SOUTH AFRICA
Second Applicant
and
SOCIETY OF ADVOCATES OF NATAL
First Respondent
NATAL LAW SOCIETY
Second Respondent
Coram:
HEFER ACJ, SMALBERGER ADCJ, NIENABER, CAMERON,  MPATI JJA
Date of Hearing:
15 February 2001
Date Delivered:
9 March 2001
Advocate - unprofessional conduct - accepting instructions without intervention of attorney - whether the Bar is a
referral profession and, if so, whether change is required.
JUDGMENT

HEFER ACJ:
[1] Legal practitioners in South Africa are either advocates or attorneys. As Corbe
CJ observed in  In re Rome 1991(3) SA 291 (A) at 305I - 306A,

“[h]ere we have what has been described as ‘the divided Bar’ (see Joubert (ed) Law of
South Africa vol 14 para 246). It is a legacy from Holland, and also from England. Legal
practitioners thus fall into one or other of the two groups, the advocates and the attorneys.”
[2] Mr De Freitas, the first applicant in this application for leave to appeal,  is a
advocate. He practises in KwaZulu-Natal as a member of the second applicant, th
Independent Association of Advocates of South Africa (“IAASA”). IAASA function
side by side and, in a sense, in competition with the constituent Bars of the Genera
Council of the Bar of South Africa (“the GCB”).  The constituent Bars have been i
existence for the last century or more at the seats of the various Divisions of the Hig
Court.  Each of them has its own rules regulating the professional conduct of it
members. One rule that they all have in common is that, with minor exceptions
members do not accept instructions from clients without the intervention of attorneys
IAASA was founded during 1994 by a group of advocates who were and are  avers
to this  and certain other rules. Its constitution permits its members to accep
instructions directly from the public.
[3] Mr De Freitas has accepted instructions in this manner. He has also performe
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Society of Advocates of Natal (“the Society of Advocates”) to have his name struc
from the roll. IAASA and the  Natal Law Society (“the Law Society”) intervened in th
proceedings and eventually, in a judgment reported as Society of Advocates of Nata
v De Freitas and Another (Natal Law Society Intervening) 1997(4) SA 1134 (N),  th
Full Court of the Natal  Provincial Division of the High Court
(a) found Mr De Freitas guilty of unprofessional conduct and suspended
him from practice for a period of six months, and
(b) dismissed a counter-application by IAASA for an order declaring that
any advocate has, alternatively, advocates who are members of IAASA
have, the right to accept instructions from any person with or without the
intervention of an attorney, to perform any of the functions of an
advocate.
[4] After unsuccessfully seeking the leave of the Court a quo the applicants hav
now applied to the Chief Justice for leave to appeal. Their application has been referre
to the Court for argument. It is opposed by the Society of Advocates and the Law
Society on the ground that there are no reasonable  prospects of a successful appeal
[5] At the outset it is necessary to remind oneself of the role of the courts in matter
of this kind. Since Mr De Freitas is not a member of the Society of Advocates he i
neither bound by the latter’s rules nor subject  to its internal disciplinary jurisdiction
But it is trite that the courts have inherent disciplinary powers over practitioners i

NO 1921 AD 425 at 435; Society of Advocates of Natal and Another v Knox an
Others 1954(2) SA 246 (N) at 247G ad fin).   In De Villiers at 456 Innes CJ said :
“The interference of the Court is clearly justified where there has been gross non-discharge
or mis-discharge of professional duty. So also where the conduct proved, whether criminal
or not, is so morally reprehensible that the person guilty of it is clearly unfit to become or
remain a member of the profession. But when we leave the area of criminality, immorality
or actual misconduct, the enquiry becomes more complicated ...”
In the latter type of case interference by the court is ultimately a matter of judicia
discretion (De Villiers at 432; Beyers v Pretoria Balieraad 1966(2) SA 593 (A) a
605D-E). In other words, it is for the court to consider the propriety of the conduc
proved and, if it is found to be unprofessional, what the penalty should be. In doin
so it must take account of all the circumstances of the case with due regard to th
demands of the proper administration of justice, and the interests of the profession an
the public.
[6] In the present case the main charge against Mr De Freitas is that he has accepte
instructions from clients without the intervention of attorneys.  That he has done so o
several occasions is not disputed.  In their written heads of argument the applicant
sought to counter the Society of Advocates’ case by denying that the Bar in ou
country is a referral profession which does not generally permit advocates to accep
instructions directly from clients. This was in line with their stance in the Court a quo
However, in his oral argument in this Court Mr Van der Spuy, senior counsel for th

sought to meet the case against Mr De Freitas with an argument that a referral practic
is no longer suitable in view of events during 1994 and thereafter.
[7] Let me say before I deal with this argument that  I have no doubt that th
concession was correctly made.  Admittedly, the Court  a quo could find no clea
indication in the old authorities that advocates practising in Holland before th
reception of Roman-Dutch law in South Africa only acted on instructions from
attorneys. But, after examining subsequent developments in South Africa and th
influence of the English practice, the Court concluded that the Bar in this country is
referral profession. This, to my mind,  is plainly correct in view particularly of  th
remarks in Rome’s case which will be quoted later, and  the  judgment in Beyers
Pretoria Balieraad supra in which this Court found an advocate guilty o
unprofessional conduct inter alia for having accepted instructions without th
intervention of an attorney.
[8] The referral practice that we know in this country is not that advocates may no
under any circumstances accept instructions directly from clients. Various exception
are allowed, one of which is that counsel may be instructed directly by the Legal Aid
Board. In other matters the rules of the various Bars do not correspond in all respects
Advocates in the Western Cape may, for example, take direct instructions for opinions
from a restricted list of clients,  which members of other Bars may not do.
[9] The practice clearly serves the best interests of the professions and the publi

306B-D,
“[t]he advocate is, broadly speaking, the specialist in forensic skills and in giving expert
advice on legal matters, whereas the attorney has more general skills and is often, in
addition, qualified in conveyancing and notarial practice. The attorney has direct links (often
of a permanent or long-standing nature) with the lay client seeking legal assistance or advice
and, where necessary or expedient, the attorney briefs an advocate on behalf of his client.
The advocate has no direct links or long-standing relationship with the lay client: he only
acts for the client on brief in a particular matter ... ”
In litigious matters the benefits to the client  arising from this  relationship are manifes
Although some  attorneys have  precisely the same academic qualifications a
advocates their  practical schooling is markedly different since it is aimed at th
acquisition of special skills to do different types of work.   This in turn is so becaus
advocates and attorneys occupy  themselves with different kinds of litigious work. I
is the advocate who generally prepares pleadings and presents clients’ cases to th
courts, whereas it is the attorney who takes care of matters such as the investigatio
of the facts, the issuing and service of process, the discovery and inspection o
documents, the procuring of evidence and the attendance of witnesses, the executio
of judgments, and the like. In this way each of them applies his own skills for th
benefit of the client. It is quite clear that, where an advocate is not briefed by a
attorney, he will of necessity have to do some of the work which his attorney would
otherwise have done. That part of the work cannot, as Mr Van der Spuy suggested
simply be left to the client. After all what does a lay client know about these matters

to do the work himself or the  client, at the very  least, will  require counsel’s guidanc
in matters of which the latter himself usually knows very little.
[10] It is not without reason that Corbett CJ mentioned the absence of direct an
possibly long-standing links between an advocate and his client. It is of the utmos
importance that there should be some distance between them in order to ensure an
preserve the advocate’s independence. In this regard (and also to emphasize what
have already said)  I can do no better than to quote from a speech by Lord Benso
who chaired the Royal Commission on Legal Services in the United Kingdom betwee
1976 and 1979. (The speech was delivered in Cape Town during 1988 and has bee
reported in 1988 (105) SALJ 421-433.) Speaking on the subject of the possible fusio
of the professions of advocates and attorneys he said at 422-429:

“We [the Commission] based our conclusion [that there should not be a fusion] on three
separate principles. First, any rule made by or privilege granted to a profession must be
designed not for the private benefit of the members of the profession but to protect the
interest of, or to enhance the level of service to, the public. Second, in every walk of life,
particularly in the professions, there is a growing need to specialize in each of the many
different types of work and activity. This is a duty which every profession owes to the
public it serves. Third, one of the privileges and duties conferred upon a professional man
is the ability to express an independent and impartial opinion in respect of his client’s affairs
.... The evidence put before us was overwhelmingly opposed to fusion. The Bar and the
majority of the solicitors opposed it. Nearly all the witnesses, including the judges, said that
it would diminish the specialist services provided by the bar. In particular it would lead to
a serious fall in the quality of advocacy and, because of the nature of court proceedings,
in the quality of judicial decisions. This would damage not only the interests of litigants but
the administration of justice itself ...
Let us look at the practical issues. A mass of work is brought into solicitors’ offices by

before him. For example, large sums of money and property may be involved which require
the advice of specialists in property and in taxation. Complex legal issues emerge which
demand experience in the particular branch of the law. Advocacy of a high order may be
needed to avoid a custodial sentence which imperils a client’s freedom. The solicitor may
be too close as a friend or advisor of long standing or be so involved with the detail as to
prevent him from taking a detached view. In these many situations the solicitor and the
client are not content unless they can obtain the independent services of a specialist with
the necessary skills at his command. It would be foolish, if not negligent, to do otherwise
... The Commission was satisfied that the independent view which is brought to bear by
counsel often has the effect of defining and limiting the issues or bringing about a settlement,
which represents important savings in time and cost. ”

These  remarks reveal the symbiotic relationship between the two professions an
highlight the inherent dangers of  an attorney acting without an advocate in deservin
cases or of an advocate acting without an attorney and trying to do  the latter’s work
[11] There is, moreover, a more obvious reason why an advocate should not perform
the functions of an attorney. It is that, unlike attorneys, advocates are not required t
keep trust accounts. In terms of the Attorneys Act 53 of 1979 every attorney sha
open and keep a separate trust banking account and deposit therein money held o
received by him on account of any person. No amount standing to the credit of suc
an account shall be regarded as forming part of the assets of the practitioner or ma
be attached on behalf of any or his creditors; and, equally importantly, any shortfall i
the account may, in proper circumstances, be recovered from the Fidelity Fund.   A
client who does not employ an attorney and instructs an advocate directly does no
have the same protection or any protection at all. In the present case, for example, M

the process of a divorce. The parties were married in community of property and th
assets had to be divided. With this in mind Mr De Freitas wrote to his client’
employer requesting it to pay half of a pension payable to the client into his (D
Freitas’s) “business account”.  Had the money been paid the client would have had n
protection whatsoever in the event of his advocate’s insolvency or against th
attachment of the money in the account by the latter’s creditors. Such a state of affair
is plainly not in the public interest.
[12] Bearing all this in mind I turn now to consider the argument that events that hav
occurred since 1994 call for a change. Under this rubric Mr Van der Spuy listed (1) th
coming into effect of the Interim Constitution (Act 200 of 1993); (2) the formation o
IAASA; and (3) the grant to attorneys of the right to appear in superior courts by th
Right of Appearance in Courts Act 62 of 1995. I will deal with each of these in turn
[13] The Interim Constitution.
(a)
The Interim Constitution which took effect on 27 April 1994 is applicabl
because the conduct proved occurred during 1996 before the curren
Constitution came into operation.
(b)
The right of every detained person to consult with, and the right of  ever
accused person to be represented by a legal practitioner of his or her choice ar
entrenched by ss 25(1)(c) and 25(3)(e) respectively.
(c)
I am unable to accept Mr Van der Spuy’s submission that these provisions pe

se afford a detained person and an accused in a criminal case the right to engag
an advocate of his or her choice without the intervention of an attorney. Thi
is not what the sub-sections say; nor is there any indication of an intention to d
away with a firmly established and well-known practice.
(d)
Nor do I regard the existence of these provisions sufficiently cogent to persuad
me that a change is called for. Detainees and accused persons are not (by th
operation of the referral practice) precluded from access to counsel of thei
choice. All that is required is that they go through the right channels. If they d
not have the financial means to engage counsel  there are many competen
attorneys who would represent them.  They would therefore not be denied lega
representation.
(e)
Sec 26(1) which has also been called in aid entrenches the right freely to engag
in economic activity and to pursue a livelihood anywhere in the national territory
But this does not entail that a trade, industry or profession cannot be regulate
in a manner which does not in effect deny the right.  The continuation of  th
referral practice would not  have this effect.
(f)
Mr Klein, junior counsel for the applicants who presented part of the argumen
on their behalf, stressed the fact that the Interim Constitution introduced a new
social order in which, he submitted, there should be greater access to the ma
in the street to a lawyer of his choice Whilst I support the underlyin

philosophy of the submission I cannot agree that a practice which has hithert
been regarded as in the public interest should be forthwith abandoned.
[14] The formation of IAASA.
Mr Van der Spuy did not reveal to us the relevance of the formation of a
association which does not support the referral practice. All that it tells us is that th
practice is not favoured by every admitted advocate in the country.
[15] The attorneys’ right of appearance in the High Court, this Court and th
Constitutional Court.
Until the passing of Act 62 of 1995 attorneys did not generally have the right t
appear in these courts; but those who have certain prescribed academic and practica
qualifications may now be admitted to do so in terms of s 3 read with s 4 of the Act
Mr Van der Spuy pointed out that attorneys who have been so admitted now practis
in direct competition with advocates and submitted (1) that counsel’s right to accep
instructions directly from members of the public is the necessary corollary of th
attorneys’ right to appear in the courts which used to be the exclusive domain o
advocates and (2) that a situation where members of the Bar are dependent on thei
competitors for their livelihood cannot be tolerated. That some attorneys now practis
in competition with advocates is correct but the first submission is plainly untenable
I say no more. As for the second submission I agree that the situation is undesirabl
but members of the public who wish to procure the services of advocates may still d

so. Weighed as a matter of public interest against the benefits of the referral practice
it seems to me that the new right of appearance does not afford sufficient reason to d
away with the established practice or to change it.
[16] In any event I want to say this about change. The referral practice was no
conceived by the legislature or devised  by the courts. It came to us through centurie
of experience and development first in the United Kingdom and later in our ow
country.  It exists in one form or the other in several other Commonwealth countrie
where there are divided Bars. One’s general impression of the position in countrie
such as England, Wales, Ireland, Scotland, New Zealand and various Australian state
is that direct access by lay clients to advocates is strictly regulated. One cannot, a
IAASA requests us to do in its counter-application, simply put a pen through the Bars
referral  rules even though one may feel that changes in certain areas may be justified
It is not for us to take such a bold step. Nor, I venture to suggest would it b
appropriate for the legislature to do so. The rules have been designed by the Bars fo
practice in a divided profession  in what is plainly the public interest. Experience
members of the Bars are much more aware than we are of the problems in, and th
needs of,  the profession and of the available facilities to overcome them.  It should b
left to them to consider in what respects and to what extent change is required. I sa
this  despite the fact that the courts will be the final arbiters of the validity of an

changes that may be effected in so far as they may reflect on the propriety o
advocates’ conduct. It would be foolish for us to interfere in the way in which IAASA
asks us to do knowing full well that, by doing so, we will force South Africa out o
step with comparable Commonwealth countries and bring an end to a practice whic
clearly serves the interests of the public.
[17] From this it follows that the refusal of the declaratory order sought by IAASA
cannot be disturbed.
[18] It also follows that the Court a quo’s finding that Mr De Freitas is guilty o
unprofessional conduct for having accepted instructions without the intervention o
attorneys cannot be disturbed either.
[19] I do not intend to deal with the finding that he had performed the functions o
an attorney. Despite a half-hearted attempt by Mr Van der Spuy to persuade us to th
contrary it is quite clear that the finding is well founded.
[20] Mr Van der Spuy argued in conclusion that  the suspension for six months an
the order of costs granted against the applicants by the Court a quo are unreasonable
Whilst I have some sympathy with Mr De Freitas because he has been suspended fo
having acted in accordance with IAASA’s constitution whereas his colleagues have no
been penalized, there is no reason why we should interfere with the way in which th
Court a quo exercised its discretion both in regard to the penalty and in regard to th
t

Failing reasonable prospects of a successful appeal the application is
dismissed with costs including, in the case of the first respondent, the
costs of two counsel.

JJF HEFER
Acting Chief Justice
Concur:
Smalberger ADCJ
Nienaber JA
Mpati JA
CAMERON JA:
(g)
I have had the benefit of reading the judgment of Hefer ACJ.   I  agree that th
application for leave to appeal lacks merit and must be dismissed.  However, th
reasons that compel me to this conclusion are considerably narrower than those o
Hefer ACJ, and I therefore propose to set them out briefly.
(h)
The question that the application to strike off the first applicant and the counte
application of the second applicant, IAASA, both raise is whether this Court shoul
invoke its supervisory jurisdiction over legal practitioners to enforce against a
advocates practising as such a rule that they may not act for a party without th
intermediation of an attorney. That the Court has a jurisdiction to supervise how lega
practitioners conduct their practice, and that it is to be exercised in the public interes
I take as self evident More difficult in my opinion is whether it should be engaged i

to uphold, and IAASA, the “rebel Bar”, seeks to challenge.
(i)
That the rule is not of unquestioned antiquity, nor of uncontested ambit, appears from
Attorney-General v Tatham 1916 TPD 160 at 168 - 9, where the Full Bench of th
Transvaal Provincial Division refused to regard as unprofessional the conduct of a
advocate in advising a client without the intervention of an attorney and charging a fe
for this service.  Indeed, the traditional Bar (to which I shall refer as “the Bar”) has itse
been reconsidering aspects of the referral rule since 1995, when the Right o
Appearance in Courts Act 62 of 1995 extended to attorneys the right to appear in th
superior courts.  This appears from the papers and was confirmed to us durin
argument by counsel for the Bar.
(j)
That history and tradition, by themselves, cannot suffice to justify the invocation of th
Court’s power over legal practitioners I also take to be self-evident.  Nor, of course, ca
the mere fact that the established legal profession applies such a rule.
(k)
The crisis in legal services in this country is too acute, and the threat this represent
to the administration of justice too grave, for the courts to enforce tradition without ther
being compelling reason in the public interest to do so. Too many of the rules for whic
the Bar once fought have been abandoned in the course of time for us to accept withou
further ado that any rule it now seeks to uphold must routinely receive the imprimatu
of judicial enforcement. One has but to think of the two-counsel rule (in terms of whic
senior counsel were formerly required to appear only when briefed with a junior) an
the rule that, until all too recently, excluded academics not in full-time practice from
membership of the Bar, to realise that features of practice defended today as intrinsi
to the proper constitution of the profession and to the adequate rendition of service

moving profession.
(l)
To my mind, the referral rule is too uncomfortably reminiscent of some of these rule
to conclude in broad terms that it is necessary to uphold it in the public interest withou
precise and narrow scrutiny of the basis for that claim.  Indeed, the application to strik
off the first applicant was brought on the premise that it is "a fundamental principle o
the advocates' profession as practised in SA (and in all Commonwealth jurisdiction
where the division of the legal profession into Advocates and Attorneys has bee
maintained) that the Advocates' profession is a referral profession and that Advocate
do not accept briefs directly from members of the public".  Shortly before argument, th
Court requested detailed information from the parties as to the position in comparabl
jurisdictions. That information showed that the averment in question was stated to
broadly, and Mr Wallis, who appeared for the Bar, disavowed reliance upon it.
(m)
The information supplied to us from the United Kingdom and Australasia indicates tha
in most areas where the division within the legal profession is maintained, the referra
rule has been substantially adapted, so that, subject to strict safeguards, specialis
litigation-practitioners are indeed now entitled to take work directly from the public o
sections of it.  In this the Bar in our country appears to be behind its peers even in th
United Kingdom where, at the English Bar, detailed rules providing for direct acces
in strictly circumscribed cases now exist.  That those jurisdictions have so adjusted th
rule in the interest of both the public and the profession that serves it seems to me t
be beyond question; and it is for these reasons that I conclude that a claim by a branc
of the legal profession that a professional rule or practice exists in the public interes
and should for that reason be enforced by the courts must be scrutinized to ensure tha

(n)
Where a rule of professional practice is sourced in statute, any limitation of rights tha
statute contains will of course have to pass muster under the Constitution.  Regulatio
of professional practice will certainly have to be rational and non-arbitrary to pas
constitutional scrutiny (S v Lawrence 1997 (4) SA 1176 (CC), at paras 34 - 35, pe
Chaskalson P).  Where a rule of professional practice is not sourced in statute it mus
for the reasons I have given, be subjected if anything  to even more exacting scrutiny
As is indicated in the judgment of Hefer ACJ, the basis of the courts’ power to enforc
professional rules is not a novel question in this Court. In the Transvaal High Cour
Innes JP formulated a test that in my view still forms a sound basis for distinguishin
between conduct by a practitioner that is intrinsically and necessarily unprofessiona
and conduct that may be unprofessional and undesirable only because of th
contingent conditions of legal practice within which it occurs. In Pienaar and Versfel
v Incorporated Law Society 1902 TS 11 at 16, Innes JP asked:
“Has [the Court] the power to prohibit conduct on the part of practitioners, which, though not in itse
immoral or fraudulent, may yet in the opinion of the Court be inconsistent with the proper position o
its practitioners and calculated, if generally allowed, to lead to abuses in the future?”
His answer was that the Court does possess that power.   As Innes JP indicated, if the conduc
impugned is not “in itself immoral or fraudulent” it must pass a two-fold test for judici
proscription as unprofessional:  it must be (a) inconsistent with the proper position of a lega
practitioner; and (b) calculated, if generally allowed, to lead to abuses in the future.
(o)
In my view, the mere fact that the profession is divided into two in our country does no
logically or necessarily entail  the referral rule.  Experience in those jurisdictions wher

Bars without enforcing the referral rule against all other litigation-specialists shows a
much.
(p)
I agree with Hefer ACJ that it is in the public interest that there should be a vigorou
and independent Bar serving the public, which, subject to judicial supervision is sel
regulated, whose members are in principle available to all, and who in general do no
perform administrative and preparatory work in litigation but concentrate their skills o
the craft of forensic practice. It is not, however, clear to me that this desideratum i
incompatible with some relaxation of the referral rule and I do not understand th
judgment of Hefer ACJ to suggest that it is.  I do, however, consider that the Bar shoul
be encouraged to investigate with urgent speed whether accommodations of th
referral rule along the lines already practised in comparable jurisdictions should not b
introduced here as a means of possibly enhancing public access to legal services an
reducing the cost of at least some of those services.
(q)
There is, in short, in my view nothing intrinsically improper in a specialist corps o
litigation-practitioners operating without the referral rule in its widest sense;  nor, a
experience in comparable jurisdictions amply shows, would sensible adjustments t
the rule be inimical to the continued flourishing of such a corps.  From a public polic
point of view, the enactment of the 1995 statute indeed shows that the Legislatur
considered that at least one branch of the profession —  attorneys — should b
permitted to offer all litigation services without the necessity for being briefed b
another practitioner.  That does not show, as IAASA insupportably contended, tha
advocates should by reciprocal relaxation be permitted to engage in all forms o
attorneys’ work But it does show that the courts — before whom litigation-specialist

— should be meticulous in their scrutiny of the same rule when its enforcement i
sought against all advocates.
(r)
However, as is explained in the judgment of Hefer ACJ, there is a very particular, an
contingent, reason for concluding that the “proper position” of advocates in this country
at least for the present, entails the enforcement of the referral rule since its disregard
if generally allowed, would “lead to abuses in the future”. That is the position with regar
to trust accounts. Because the statutes regulating the two branches of the professio
are, by and large, premised on their division into two branches, advocates are no
required or permitted to keep trust banking accounts for the receipt and retention o
client’s money.  If they purport to do so, a peculiarity of our law of trusts precludes th
arrangement from being effective to protect the public against appropriation and loss
This is because in our law (unlike most other countries where the trust institution ha
developed) a living person cannot by unilateral act sequester a portion of assets an
call them a “trust” so as to create the founder a trustee and render the assets immun
from creditors (Ex parte Estate Kelly 1942 OPD 265, 272;  Crookes N O v Watso
1956 1 SA 277 (A) 298, per van den Heever JA).  An advocate of necessity operate
outside the statutory apparatus of s 79 of the Attorneys Act 53 of 1979 and cannot b
unilateral declaration create a trust.  Indeed, for all trusts except oral trusts, the Trus
Property Control Act 57 of 1988 has further complicated the position by requiring th
official sanction of the Master before even a properly created and appointed truste
can operate as such (Simplex (Pty) Ltd v van der Merwe and others NO 1996 (1) SA
111 (W)).
(s)
The facts of the present matter illustrate the real and substantialdanger to the publi

dealing with their clients’ money or even by taking deposits on fees in advance.   A
shown in the judgment of Hefer ACJ, the first applicant invited the payment into wha
he called his “business account” of what may have been a very substantial portion o
the accumulated assets of a married couple one of whom he was representing.  Ha
the invitation been accepted, not only would there  have been no protection against hi
creditors in the event that he was sequestrated, but there would have been n
protection against his disposal of that money, as its owner, since in law when it wa
paid into his account it became his.
(t)
Such a situation the courts cannot countenance.  For so long as the statutory absenc
of trust fund protection continues, it provides in my view a compelling reason in th
public interest for the courts to enforce the referral rule.  It follows at the very least tha
the first applicant in soliciting the payment in question acted unprofessionally an
improperly and rendered himself subject to appropriate sanction by the court.
(u)
It is true that a small number of advocates may disavow the intention ever to deal wit
the public’s money or even to take any fees in advance. Cases of this sort can b
envisaged, and some advocates who have committed themselves exclusively to pr
bono work no doubt practise on this basis.  But they constitute a tiny minority of the tota
in the profession; and the rules enforced by this Court must take practical account o
what practices, if generally allowed will (again in the words of Innes JP in the Pienaa
and Versfeld case (at 18)) be “obviously likely to lead to abuse”.
(v)
I therefore agree with the observation of Thirion J in the Court below, in adjudicatin
on the applicants’ application for a certificate in terms of rule 18 of the Constitutiona
Court rules that “what the [applicants] are seeking to achieve is a situation where th

subject to the restrictions imposed on an attorney”.  In this, IAASA asks this Court t
accord its members a breadth of unregulated practice which goes beyond anythin
known to any of the jurisdictions comparable to ours.

E   CAMERON
JUDGE OF APPEA
Concur:
Smalberger ADCJ
Nienaber JA
Mpati JA