MODULE 13

THE LEGAL
PROFESSION
29 AUGUST 2023
MS K . L E TS I RI
Prescribed reading

1. Chapter 11 of the textbook – pages 355 to 374

2. Prince v President of the Law Society of the Cape Good Hope

2002 2 SA 794 (CC)

3. Minister of Justice and Constitutional Development v Prince

(Clarke and Others Intervening); National Director of Public
Prosecutions v Rubin; National Director of Public Prosecutions
v Acton 2019 (1) SACR 14 (CC)

4. Rafoneke v Minister of Justice and Correctional Services 2022

ZACC 29
2
THE LEGAL PROFESSION
 SOME TRADITIONAL
PERSPECTIVES ON THE SOUTH
AFRICAN LEGAL PROFESSION
English Influences
• Dress code
• The use of legal language and specialised language in court e.g. “If
it pleases the court / as the court pleases”.
• Addresses to the presiding officers e.g. “My Lord / My Lady”
(High Court Judges) or “Your Worship” (Magistrates).
• The split nature of the profession
• In SA: Attorneys and Advocates.
 In the UK: Solicitors and Barristers.
• In SA now: attorneys + advocates = legal practitioners/ candidate
legal practitioners

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Qualifications
LLB – 4 years bachelors
professional degree (required to
enter profession).
LLM – Master of Laws degree in
a specialised field.
Degrees that are accompanied by
the LLB –
• BCom Law, BA Law, Bsc Law
– 3 years bachelors courses
preceding a LLB degree
• + 2 additional years of LLB
LLD – Doctor of Laws degree in
a specialised field.
A law degree obtained in a
foreign country, which is
equivalent to the LLB degree
and recognised by the South
African Qualifications Authority
established by the National
Qualifications Framework Act 67
2008
PhD – Doctor of Philosophy
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TRADITIONAL CAREERS IN THE
SOUTH AFRICAN LEGAL
PROFESSION – THE PRIVATE
SECTOR
ATTORNEYS
Attorneys (post Nov 2018)
• Legal practitioners admitted and enrolled in terms of s 24 and 30 of the LPA and regulated by the Legal
Practice Council
• May provide legal services after receiving a direct request from the public – this capacity to deal directly
with the public (clients) has traditionally been the defining feature of attorneys, i.e split nature of the
profession)
• Work encompasses – dispute resolution, litigation, legal drafting, regulatory advice and compliance auditing
• Attorneys can practice as: (i) sole practitioner; (ii) in partnership with other attorneys in a law firm; (iii)
establishing their practice as a personal liability company (“Inc” after its name)

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Attorneys – requirements under LPA
• “Candidate attorney” - a person undergoing practical vocational training with a
view to being admitted and enrolled as an attorney

• A LLB, BA LLB, BCom LLB

• Completion of two years articles of clerkship (“practical vocational training” –

training required to qualify as a candidate attorney) at a private firm or legal aid
clinic

• If one has completed a practical legal training course of at least 4 months, only
one year of articles need be served. (delivered by LEAD School for PLT)

• 4 Attorneys admission exams must be passed

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ADVOCATES
Advocates (post Nov 2018)
• Legal practitioners admitted and enrolled in terms of s 24 and 30 of the
LPA and regulated by the Legal Practice Council
• Skilled litigators who argue matters before presiding officers (usually
judges in High Courts)
• Generally, advocates may not render legal services on direct request from
the public.
• They do not deal directly with clients
• Their clients are the attorneys?
• Advocates may deal directly with clients if they opt to do in terms of s
34(2) of the LPA + maintain a trust fund
• Form an association of practicing advocates known as the “bar” or
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“chambers”
Advocates – requirements under LPA
• “Pupil” – means a person undergoing practical vocational training with a view to
being admitted and enrolled as an advocate
• A BA LLB, BCom LLB, or LLB must be obtained
• A pupil advocate must complete 12 months of pupillage (Jan 15 to Dec 31 of any
year) with a qualified advocate, known as a “Master”. (unpaid )
• On completion, the pupil writes a competency exam
• An advocate who has gained sufficient experience & recognition may be
appointed as senior counsel or “silk” – appointed by the President of the
Republic
• SCs wear silk togas & judges are often appointed from these ranks

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Some stats: attorneys
• As at January 2022:
https://www.lssa.org.za/about-us/about-the-attorneys-profession/statistics-for-the-attorneys-profession/
Total attorneys 29 981
White attorneys 15 779 53%

Black attorneys (includes African,

14 202 47%
coloured and Indian)

White male attorneys 9 129 31%

Black male attorneys 8 138 27%
White female attorneys 6 650 22%
Black female attorneys 6 064 20%
Total female attorneys 12 714 42% 14
Some stats: attorneys
• As at January 2022:
https://www.lssa.org.za/about-us/about-the-attorneys-profession/statistics-for-the-attorneys-profession/

Total candidate attorneys 5 483

Eastern Cape 339 6%
Free State 282 5%
Gauteng 2 623 48%
KwaZulu-Natal 869 16%
Limpopo 288 5%
Mpumalanga 176 3%
Northern Cape 54 1%
North West 165 3%
Western Cape 687 13%
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Regulation of legal practitioners pre-LPA
• Attorney’s affairs were regulated by the Attorney’s Act
• Advocate’s affairs were regulated by the Admission of Advocates Act
• Distinction between the two was in the nature of the work
• Attorneys undertook litigious and non-litigious work + could be approached by members of the public
• Advocates were regarded as litigation specialists = + did not consult with members of the public at all
• Attorneys = Law Society of SA
• Advocates = General Council of the Bar

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IMPLICATIONS OF THE LEGAL
PRACTICE ACT 28 OF 2014
The Legal Practice Act 28 of 2014
• The Act was enacted on 22 September 2014 and came into
partial operation in 2015
• The remaining chapters were enacted on 1 November 2018
• The Act aims to “provide a legislative framework for the
transformation and restructuring of the legal profession that
embraces the values underpinning the Constitution and ensures
that the rule of law is upheld.” (s 3 purpose of the Act)

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The Legal Practice Act 28 of 2014
• Determining legal fees charged by legal practitioners for
services rendered;
• Providing for community service by legal practitioners;
• Equal opportunities for all legal practitioners that broadly
reflects the demographics of the Republic (as such, a diverse
legal profession).

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The Legal Practice Act 28 of 2014
• Creating a single unified body, the South African Legal
Practice Council, that will regulate all legal practitioners in
pursuit of the goal for an accountable, efficient and independent
legal profession
• LPC regulates the affairs of legal practitioners, admits legal
practitioners, & sets norms and standards
• (another blurring of the traditional distinctions btw advocates
and attorneys)
•

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The Legal Practice Act 28 of 2014
• Protect and promote public interest
• Provides for the establishment of the Legal Service Ombud
• Provide for an efficient, transparent and effective complaints procedure
against legal practitioners and candidate legal practitioners
• Create a framework for development and maintenance of appropriate
ethical norms and standards for the profession;
• Regulation of the admission and enrolment of legal practitioners;
• Developing adequate training programmes for legal practitioners and
candidate legal practitioners

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The Legal Practice Act 28 of 2014
• The LPA makes extensive provision for disciplinary procedures
• Code of Conduct for Legal Practitioners, Candidate Legal
Practitioners and Juristic Entities – established by the LPC
• Found guilty of misconduct?
 payment of compensation
 a fine payable to the LPC
 temporary suspension from practice
 withdrawal of a Fidelity Fund Certificate
 endorsement of the practitioner's enrolment

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The Legal Practice Act 28 of 2014
• Community service (s 29)
 It will be compulsory for legal practitioners and candidate legal
practitioners to engage in a period of community service as
determined by the Minister of Justice & Constitutional Development.
• Legal fees (s 35)
 Legal fees rendered will have been determined by tariffs made by Rules
Board for Courts of Law.
 Attorneys and advocates will have to provide a “cost estimate notice” (a
quotation) to clients in respect of legal costs that will arise from legal
services (sect 35(7)).
 Contingency fee agreements (no win, no fee) also catered for in this Act
(s35(12)

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Rafoneke v Minister of Justice and Correctional Services 2022
ZACC 29

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 Rafoneke v Minister of Justice and Correctional Services 2022
ZACC 29
• Applicants sought to challenge the High Court’s declaration of invalidity relating to s 24(2) read with 115 of the
LPA insofar as it does not allow foreigners to be admitted and enrolled as non-practicing legal practitioners

• Applicants argued that the sections offended s 9 of the Constitution, do not serve a legitimate government
purpose and conflict with the stated objectives of the LPA

• Respondents argued that

 the provisions are in line with a governmental obligation i.e., that foreign national do not circumvent
immigration and labour laws;
 the differentiation is justifiable, fair and consistent;
 there are various citizens and permanent residents who are adequately qualified but already struggle to gain
employment

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 Rafoneke v Minister of Justice and Correctional Services 2022
ZACC 29
• Court held that
 s 22 of the Constitution is silent RE non-citizens therefore does not afford the right to them

 When students who are neither citizens nor permanent residents choose to study, they do so with
knowledge of the fact that they are not eligible for admission

 Differentiation between citizens and permanent residents on the one hand, and foreign nationals on the
other hand does not amount to discrimination which is unfair

 Citizenship is not a listed ground in s 9 of the Constitution and does not fall within the ground of social
origin

 Dismissed HC order of invalidity + applicant’s appeal

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OTHER CAREERS IN THE
PROFESSION
 Self Study!
• Conveyancer. • Registrar (HC/RMC) and Clerk (MC) of the Court.
• Notary. • Master of the High Court.
• Legal Advisor – also including a compliance • Family Advocate.
officer and in-house “legal counsel” at a corporate • Public Protector.
entity e.g. a bank. • Public Defender.
• Prosecutor. • Legal Academic.
• State Attorney and State Legal Advisor. • Civil Society
• SA Human Rights Commission and the SA Law
Reform Commission.

• Fees/costs
• Types of Legal Aid

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ETHICS
Broad principles
• Legal practitioners are bound by ethics
• As an officer of the court, your first duty is to the court
• Never deceive the court
• Respect for opponent, in or out of court
• Honesty and integrity of the utmost importance
• Action can be taken against professionals for dishonest and unethical behaviour

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Fit and proper
• Du Plessis The Ideal Legal Practitioner
• Practitioners should have the following characteristics:
 Integrity
 Objectivity
 Dignity
 The possession of knowledge and technical skills
 Capacity for hard work
 Respect for the legal order (what if the laws are unjust?)
 Sense of equity and fairness
• Candidate legal practitioners attend a fit and proper interview with a senior member of the
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profession - Highly discretionary
Fit and proper
Prince v President of the Law Society of the Cape Good Hope 2002 2 SA 794 (CC)

• The applicant (Mr Prince) was refused admission into legal practice as he had been convicted for the
possession of cannabis, which he openly admitted to using (and will continue to use) in pursuance to his
Rastafarian beliefs

Minister of Justice and Constitutional Development v Prince (Clarke and Others Intervening);
National Director of Public Prosecutions v Rubin; National Director of Public Prosecutions v Acton
2019 (1) SACR 14 (CC)
• Challenged the constitutionality of the Drugs and Drug Trafficking Act
• Declared provisions of the act along with those of the Medicines and Relates Substances Control Act
inconsistent with the right to privacy insofar as they criminalize cannabis for private consumption
• Adult individuals are now permitted to use, possess and cultivate cannabis in a private place for private
consumption
• Prince?
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Decolonising the legal profession
Consider the following candidate attorney vacancy ad:

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THE FUTURE OF THE LEGAL
PROFESSION
AI in Law

35
Useful Sites
• Legal Practice Council - https://lpc.org.za/
• Law Society of South Africa – www.lssa.co.za
• Law Society of the Northern Provinces – www.northernlaw.co.za
• General Council of the Bar of South Africa – www.sabar.co.za
• Johannesburg Society of Advocates – www.johannesburgbar.co.za
• Department of Justice and Constitutional Development – www.justice.org.za
• The Legal Aid Board – www.legal-aid.co.za
• Legal Resources Centre – www.lrc.org.za
• South African Human Rights Commission – www.sahrc.org.za
• L.E.A.D – https://www.lssalead.org.za/course/attendance-school-for-legal-practice/

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PRACTICE QUESTIONS
Question 1
Angela Motene wishes to become a legal practitioner with a view to practice as an attorney. She has
satisfied the requirements for admission, and now applies to the High Court for enrolment. At her fit
and proper interview, Angela discloses that she is a practicing Rastafarian and uses cannabis sativa for
religious purposes. She expresses that she intends to continue using the substance, and has previously
been arrested for the possession thereof, however, has never been convicted. With reference to Prince v
President, Cape Law Society 2002 3 BCLR 231 (CC), and the consolidated matter of Minister of
Justice and Constitutional Development v Prince (Clarke and Other Intervening); National Director of
Public Prosecutions v Rubin; National Directors of Public Prosecutions v Acton 2019 1 SACR 14
(CC), discuss whether Angela’s use of cannabis may have her application for admission and enrolment
dismissed. [5]

38
Question 2
Lungile Jele is a grade 11 learner at Nirvana Secondary School in Lenasia. She intends to study towards a
LLB degree at the University of Johannesburg and upon completion of her degree, she would like to
become an Attorney. Her older sister Nokuthula advises Lungile that for her to be admitted as an Attorney,
she must complete 12 months of pupillage. She further advises that Lungile can become an Attorney with
only a BA Law degree as opposed to the LLB degree. She argues that this is a much better option as the BA
Law takes only three years to complete. Furthermore, Nokuthula advises Lungile that if she goes the
pupillage route, Lungile will have to settle for being “broke” for a period of 12 months, as pupillage is
unpaid. Lastly, Lungile is unsure as to whether Nokuthula is correct, and she approaches you for advice.

Discuss the different admission and enrolment requirements for Advocates and Attorneys (6), and explain
whether Nokuthula’s assertions in respect of the requisite qualification (1) and remuneration are correct (1).
[8]

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Question 3
Identify 3 ways in which the Legal Practice Act 28 of 2014 has transformed the legal profession and has
blurred the traditional lines distinguishing between attorneys and advocates. [3]

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