NOT REPORTABLE IN THE HIGH COURT OF SOUTH AFRICA (TRANSVAAL PROVINCIAL DIVISION) JUDGMENT

Transcription

1 1 NOT REPORTABLE IN THE HIGH COURT OF SOUTH AFRICA (TRANSVAAL PROVINCIAL DIVISION) 2008 Case no. Judgment reserved:02 June 2008 Judgment handed down: 06 June In the Ex-Parte application of DALE BARRATT For her admission and enrolment as an attorney Applicant JUDGMENT LEGODI J, [1] The applicant is asking for relief in the following terms: 1.1 Condoning in terms of section 13(2) of the Attorneys Act 53 of 1979, the period of articles served irregularly from 2 January 2007 to 1 April 2007 and declaring same to be regular service under a contract of articles or a contract of service; 1.2 Directing that the applicant be admitted as an attorney of the High Court of South Africa and that her name be placed on the

2 roll of attorneys of the Transvaal Provincial Division of the High Court of South Africa. [2] On 2 January 2007, the applicant entered into a contract of Articles of Clerkship for a period of one year, the applicant having attended and satisfactorily completed the practical legal training course from June 2006 in terms of section 2 (1) (A)(a) of the Attorneys Act, 53 of 1979 ( the Act ). [3] On 24 February 2007, the applicant addressed a letter to the Law Society of the Northern Provinces ( the Law Society ) in which the contract of Articles of Clerkship aforesaid, was enclosed. [4] On the 2 May 2007, the Law Society is said to have returned to the applicant the said contract of Articles of Clerkship via Docex. [5] As on 23 May 2007, the applicant had not as yet received any correspondence from the Law Society, despite the suggestion that the contract had been returned to her. Further enquiries were then made by the applicant. [6] The applicant then later received a letter from the Law Society dated the 20 March In this letter, she was advised that she could only be registered as a candidate attorney as from 3 January 2007 as the principal had three candidates up to 2 January In the letter from the Law Society, the applicant was advised to amend the date of 2 January This was accordingly amended by the applicant as advised and sent back the contract to the Law Society as per letter dated 30 May 2007.

3 3 [7] On 31 May 2007, the Law Society wrote back to the applicant advising her that the contract could not be registered as her principal had already three candidate attorneys registered in his name, as at the 30 March [8] The letter of 31 May 2007 is said to have come to the attention of the applicant during June [9] By the time the Law Society wrote a letter dated 31 May 2007, one of the principal s candidate attorneys had already ceded his contract of articles of clerkship to another principal, this having occurred on 30 March [10] The applicant was then advised by an official of the Law Society to enter into another contract of Articles of Clerkship with effect from the 2 April This was conveyed in an e- mail dated 15 June [11] Subsequent to entering into a new contract of Articles of clerkship as advised, the contract was then registered by the Law Society on 21 June 2007 apparently with effect from the 2 April [12] On 6 February 2008, the applicant deposed to her supporting affidavit to this application. She indicated that she was 32 weeks pregnant with twins and that she has been advised by her doctor to take maternity leave with effect from the middle of February [13] The applicant would prefer not to have to return to work for some time after giving birth, to complete the last four or six weeks of the contract of Articles of Clerkship signed on 2 April According to the applicant, in the middle of February

4 2008 she would have served thirteen and half months of Articleship, apparently relocking the period from 2 January [14] According to her, she had served her principal in terms of the contract of Articles entered into on 2 January 2007 and the one signed on 2 April Sufficient cause is said to exist for this court to condone the period between 2 January 2007 and 1 April 2007 as regular service in terms of section 13(2) of the Act. [15] Section 13(2) of the Act provides that if any person has not served regularly as a candidate attorney, the court, if satisfied that such irregular service was occasioned by sufficient cause and that such service is substantially equivalent to regular service, and that the society concerned has had due to notice of the application, may permit such person, on such conditions as it may deem fit, to apply for admission as an attorney as if he or she had served regularly under articles or contract of service. [16] An applicant who wishes to invoke the provisions of section 13(2) must therefore establish the following: 16.2 Firstly, that irregular service was occasioned by sufficient cause, 16.2 secondly, that such service is substantially equivalent to the regular service, 16.3 and lastly, that the Law Society had due notice of the application.

5 5 [17] What is of concern though is whether the irregular service could be said to have been occasioned by sufficient cause. The irregular service here resulted from the fact that as at the time the contract of Articles of Clerkship was signed on 2 January 2007, the principal had three candidate attorneys registered under him, and the principal was aware of that fact. [19] Section 3(3) of the Act provides that an attorney shall at no time have more than three candidate attorneys under Articles of Clerkship. [20] I understood Mr Bezuidenhout counsel for the applicant submission to be that we should condone this non compliance as empowered to do so in terms of section 13(2). [21] In making this submission, counsel relied on the decision of Hlophe JP and Traverso DJP in Ex-parte Ndabangaye 2004(3) SA 415 CPD. In that matter, the applicant applied for condonation of irregular service of contract of Articleship and admission as an attorney. In that case the facts were briefly the following: 21.1 The applicant at the time when he entered into Articles of Clerkship and at the time when her contract was registered by the Law Society, her name was still on the roll of advocates. She discovered later at the time when she was preparing for her admission that despite having instructed an attorney to do so, her name was not removed from the roll of advocates She immediately caused her name to be removed from the roll of advocates which was done on 7 November Thereafter, her application for admission as an

6 attorney was enrolled. Based on this set of facts, irregular service was condoned and she was admitted as an attorney. [22] Section 12 of the Act provides that any person admitted to practice as an advocate shall not be allowed to register articles of a contract of service in terms of the provisions of this Act, unless his name has on his own application been removed from the roll of Advocates. [23] I have considered the reasoning in Ex-parte Ndabangaye referred to above. I also had regard to the authorities referred to in that judgment insofar as they might be relevant. [24] Of importance, is that each case has to be decided on its facts in determining whether irregular service has been occasioned by reasonable and acceptable explanation or cause. [25] In considering the facts of the case, I will also have regard to the provisions of section 5 of the Act. [26] For the sake of completeness, the section is repeated as follows: 5. Lodging, examination and registration of articles or contract of service 1) The original of any articles of clerkship or contract of service shall within two months of the date thereof be lodged by the principal concerned with the secretary of the society of the province in which the service under such articles or contract of service is to be performed. 2) The secretary of the society concerned shall, on payment of the

7 7 fees prescribed under section 80, examine any articles or contract of service lodged with him and shall, if he is satisfied that the articles are or contract of service is in order and that the council has no objection to the registration thereof, on payment of the fees so prescribed register such articles or contract of service and shall advise the principal and candidate attorney concerned of such registration in writing by certified post. 3) If articles of clerkship are or a contract of service is not registered within two months of the date thereof, any service there under shall be deemed to commence on the date or registration thereof. [27] The Law Society in the dated 7 May 2008 advised the appellant that her application in terms of section 13(2) of the Act cannot succeed and consequently neither the application for admission as an attorney. [28] In adopting this attitude the Law Society took into account what was said in Bosman V Prokureursorder van Transvaal 1984 (2) SA 633 (T), wherein it was held that only irregular service under a valid or binding contract of articles could be condoned by the court under section 13(2). [29] In response to the of the 7 May 2008, the applicant drew the Law Society s attention to the decision in Expart Ndabangaye. The Law Society then left the granting of the applicant s prayers in the discretion of this court. [30] Articles of Clerkship in terms of section 1 means a contract in writing under which any person is bound to serve as attorney for a specified period in accordance with the Act. To be valid, the contract of articles or services must be registered in terms of section 5 of the Act. Now the period for which the applicant seeks condonation was not registered in terms of section 5.

8 This raises another issue, that is, whether the applicant could be said to have been a candidate attorney from the 2 January 2007 to the 2 April 2007? A candidate attorney is described as any person bound to serve under articles of clerkship. [31] The Law Society refused to register the contract with effect from the 2 January 2007 as at this stage, till up to the 30 March 2007, the principal in question already had three candidate attorneys. The effect of this was that, had the Law Society registered the applicant with effect from the 2 January 2007, this would have been contrary to the provisions of section 3(3). [32] Now, a court considering an application for condonation under section 13(2) is bound to consider the adequacy of the applicant s grounds for condonation. In doing so, the court will have due regard to the facts of each specific application and more importantly the intention of the legislature and the applicant s right to be admitted to the profession he or she chose without undue impediment. [33] Initially the Law Society in its letter of 20 March 2007, suggested that the contract would be registered once the date on the contract is amended to the 3 January This appeared not to have been correct as after the amendment, the Law Society still refused to register the contract as apparently until up to 30 March 2007, the principal was still having three candidate attorneys registered against his name. [34] This is disclosed in the applicant s affidavit and the averment is based in an affidavit deposed to by the principal on the 7 June 2007 in terms of which it is confirmed that a candidate attorney by the names of Akarshan Bagwandin was in his

9 9 employer from 17 August 2005 until the 30 March The principal then concluded in this affidavit, that he was agreeing to the cession in terms of the cession agreement accompanying the affidavit. [35] The explanation for non-compliance with the provisions of section 3(3) is contained in paragraphs 4, 5, 6 and 7 of the principal s affidavit which is repeated herein as follow: 4. On 2 January 2007 and at Johannesburg, the Applicant entered into a written contract of Articles of Clerkship ( the Articles ) with me as her Principal. At the time, I was aware that I had three candidate attorneys under me, but as one of them completed his service with me on 2 January 2007, I did not expect the Law Society to object to the Applicant signing her contract of Articles on 2 January The applicant was prejudiced by the fact that the Law Society s letter dated 20 March 2007(attached to the Applicant s founding affidavit marked DB9) only reached the Applicant on 23 March In this letter, the Law Society instructs the applicant to enter into a new contract of Articles dated 3 January By the time the letter reached us on 23 May 2007, I already had a third candidate attorney under my name, but in error I followed the Law Society s advices as per the aforesaid letter (DB9) and entered into a new contract of Articles with the Applicant dated 3 January From the aforegoing, it is clear that due to a series of errors at no fault of the Applicant, and as more fully set out in the applicant s affidavit, the registration of the

10 Applicant s contract or articles is only effective from 2 April 2007, and not 2 January 2007, having only been registered on 1 June 2007 under number 923/ As the Applicant has served as my candidate attorney continuously since 2 January 2007 to date, I therefore fully support the Applicant s application for condonation in terms of section 13(2) of the Attorneys Act, 53 of 1979, as amended ( the Act ). [36] Before I deal with the sufficiency and reasonableness of the explanation, I need to have regard to the intention of the Legislature in terms of section 3(3) of the Act. The purpose is to ensure that candidate attorneys are given adequate training and mentoring in the work they are assigned to do by their principals. In doing so, the Legislature limited the number of candidate attorneys a principal may have at any given moment. [37] In paragraph 11 of the Principal s affidavit, it is stated that the applicant has to the best of the Principal s knowledge and belief, gained experience in many facets of the law. The averment in my view does not sufficiently place us in a better position to determine that the applicant s training and experience were not affected by the principal s engagement of more than three candidate attorneys contrary to the provisions of section 3(3) of the Act. [38] However, what is more important is the explanation given for non-compliance with the provisions of section 3(3) of the Act. Firstly, the first contract of Articles of Clerkship was concluded on 2 January This was when the Principal believed that

11 11 there would be no problem as one of his candidate attorneys would have completed his service of contract of Articles on the 2 January 2007 and that therefore it was not expected that the Law Society would object to the applicant signing her contract of Articles on 2 January [39] This explanation by the principal should be seen in the light of the fact that as on the 30 March 2007, the principal had three candidate attorneys being the maximum as allowed by the Act. The applicant was not one of the three. [40] The principal seeks to attribute the fault and the blame to the Law Society in not conveying the contents of the letter dated 20 March 2007 timeously to the applicant, the letter having been received by the applicant only in May In fact it was incumbent on the Principal together with the applicant to ensure that there was compliance with the provisions of section 3(3) of the Act. [41] The further explanation by the principal is this, by the time the letter of the 20 March 2007 reached his attention on 23 May 2007 he already had a third candidate attorney. Strange indeed, remember, one candidate is said to have completed his contract of Articles on 2 January On the same day, the principal signed a contract of Articleship with the applicant for one year. What is not explained is how did the principal manage to have a third candidate attorney excluding the applicant by 30 March 2007? Two things could have happened. Either no candidate attorney completed his contract of Articleship on the 2 January 2007 or that, in addition to the applicant, the principal signed and concluded another contract or articles with another candidate attorney in the face of the remaining two candidate attorneys after the

12 one had completed his service of articles on 2 January [42] Service of contract of articleship from the 2 January 2007 to 2 April 2007 is in two respects irregular. First it was not registered as required in terms of section 5, secondly, it was contrary to the provisions of section 3(3) of the Act. The issue is whether the explanation has passed the test of section 13(2) of the Act. The facts of the present case and the cogency of the explanation is in my view not the same as in Ex-parte Ndabangaye. There, the contract was registered from the date on which the contract was concluded. Secondly, the explanation for not complying with the provisions of section 12 of the Act was accepted as being reasonable, the applicant having instructed an attorney before entering into a contract of Articleship. But, even most importantly as at the time the application for admission was made, her name had been removed from the roll of Advocates. Conversely in the present case, failure to comply with the provisions of section 3(3) cannot be undone. Secondly, the explanation given by the applicant and his principal is not sufficient and reasonable. [43] I am mindful of the applicant s constitutional right to be admitted to the profession she chose. This should however, be seen in context. Two things appear to have motivated the appellant to bring the application for her admission at this stage. Firstly, that in the light of her pregnancy, she had to go on maternity leave from the middle of February At the time she deposed to her affidavit on the 6 February 2008, she expected to deliver twins through caesarean action by the middle of March She did not wish to return to work to complete the period of articleship after the birth of her twins. Secondly, the applicant felt that she qualifies in terms of

13 13 section 13(2) to have her irregular service from the 2 January 2007 to 2 April 2007 be condoned. [44] Refusal of the applicant s application for condonation in these circumstances cannot be said to be denying her to follow the profession of her choice. Quite to the contrary, the applicant can justify such condonation by justifying the interruption of her contract at a later stage after the maternity leave. That is, after her maternity leave, she can serve the remaining period and then bring an application in terms of section 13(2) to condone such an interruption. Again the circumstances in this regard are not the same as in Exparte-Ndabangaye. To refuse the condonation in Ndabangaye s matter would have meant service of articles of Clerkship afresh. That is not the case in the present case. The applicant can still complete the last four or six weeks of the contract signed on the 2 April 2007, whereafter she would be entitled to approach this court on the same papers, duly supplemented, to the extent necessary. [45] Consequently, I make the following order: 45.1 The application for condonation in terms of section 13(2) of the Attorneys Act 53 of 1979 for irregular service of articles of clerkship is refused The application for admission as an attorney is postponed sine die. M F LEGODI JUDGE OF THE HIGH COURT

14 I, agree T M MAKGOKA ACTING JUDGE OF THE HIGH COURT SCHINDLERS ATTORNEYS Applicant s attorneys c/o FRIEDLAND HART 201 Van Der Stel Building, 1 st Floor, 179 Pretorius Street PRETORIA Tel no