INTRODUCTION TO THEORY OF LAW

THIRD ASSESMENT ASSIGNMENT

1.1. According to the Legal Practice Act 28 of 2014 and the rules promulgated in terms of the Act

Thomas must:

(a) Undergo all practical vocational training, compulsory practical legal training and personal fitness
(b) Pass a competency-based examination determined by the legal practice council

1.2. Thomas will be admitted into the profession

1.3. Legal Practitioners Fidelity Fund

• In terms of the legal practitioners Fidelity fund, the client pays money into the trust account of
the firm pending completion of the underlying transaction.
• This money is invested by the attorney in terms of the act, while the litigation continues, it gets
reported as part of the general trust and enjoys protection by the fund.

1.4. 1. Tom will not succeed in his defense because he is not Jerry’s client and Legal privilege involves
information that is private between a client and Legal Practitioner.

1.4.2. Wynton will have to prove that:

(a) He was acting in a professional capacity at the time

(b) He has been consulted in confidence.

(c) The communications have been made for the purpose of obtaining legal advice.

(d) The advice does not facilitate the commission of a crime or fraud.

(e) The Privilege has been claimed.

1.5. Thabo must consult a Notary

(a) Notaries also:
• Prepare and register notarial deeds, cessions and waivers of usufruct, notarial leases, trust
deeds and of donation.
• Prepare noting slips, deeds of presentation and deeds of protest for bills of exchange.
• Authenticate documents
• Execute and register registerable leases.
• Draft wills and trusts, and deal with complex issues relating to testate and intestate
succession.
1.6. (a) Attorneys
• An attorney has rights of appearance in any magistrates’ court or tribunal, but may only
appear in the High court, Supreme Court of Appeal or Constitutional Court if he or she gets a
certificate from the division of the of the High Court in which he or she was admitted and
enrolled as a legal practitioner.
(b) Advocates
• An advocate has rights of appearance in any court or tribunal.

1.7. Cases
(1) Mphatswe v Law Society of the Free State

(a) The definition of a fit and proper person

• A fit and proper person is a person who shows integrity, reliability and honesty.

(b) Facts

• An application was submitted for the admission as an attorney of the Free State Division,
High Court by Mr Mphatswe who was previously denied the admission by the Law Society of
the Free State on the basis that he was not regarded as a fit and proper person.
• Mr Mphatswe is an ex-convict who served 8 years imprisonment and was released on parole
on 8 December 2010 due to good behaviour. After completing his articles of clerkship Mr
Mphatswe was employed by the Mphofi Khang Attorneys as an administrative officer and
passed his board exams in August 2014.

(c) The Issue

• The Free State Law society was of the view that it is contrary to public policy that a person
still serving a part of a sentence, but on parole, can be regarded as a fit and proper person
to be admitted as an attorney.
• The Law Society also argued that Mr Mphatswe did not disclose his parole conditions as a
result of which it is impossible for the Law Society to determine whether such conditions
might be in conflict with the requirement of the profession.

(d) The court’s decision (order)

• Mr Mphatswe’s application was dismissed with Costs

(e) Citation

• Mphatswe v Law Society of the Free State (4835/2015) (2017) ZAFSHC 208 (20 September 2017)

(f) The Judge

• C VAN ZYL, J

(g) Relevant Section

• Section 24 of the Legal Practice Act 28 of 2014.