Three-year waiting period for new attorneys ‘unconstitutional’

IN A groundbreaking judgment for newly admitted attorneys, the Gauteng High Court declared unconstitutional the three-year waiting period that prevents attorneys from appearing in higher courts.

Judge Norman Davis, on Friday, found that the section of the Legal Practice Act (LPA) unfairly singled out attorneys, as advocates admitted at the same time do not have a mandatory three-year waiting period before they can appear in the High Court, the Supreme Court of Appeal and the Constitutional Court.

The victory for newly admitted attorneys was sparked by attorney Kgomotso Ramalepe and Marweshe Attorneys. The legal challenge was brought against the Minister of Justice, the Legal Practice Council and the Black Lawyers Association.

Ramalepe was admitted by the court as an attorney in June last year, and she decided to challenge the law as she was barred from appearing in the higher courts due to the restrictions of the Act.

The LPA governs the admission of all legal practitioners. Judge Davis pointed out that, historically, attorneys did not have the right of appearance in the country’s superior courts, as this was reserved for advocates. The law in this regard was later amended, but the three-year waiting period remained.

Ramalepe, in her challenge to the relevant provisions of the LPA, argued that the three-year waiting period encroaches on the right to equality of legal practitioners and is irrational. It also infringes on the rights of attorneys to exercise their chosen profession freely.

She said that while the attorneys’ profession should be regulated, a limitation imposed by the three-year waiting period would only pass constitutional muster if it were rationally related to a legitimate government purpose.

The stance of Minister Mmamoloko Kubayi is that the relief sought is moot, as Parliament was considering amending the law. She added that, should the court declare the provisions unconstitutional, the ruling should be suspended for two years to allow Parliament to review the provisions.

Judge Davis said the arbitrary threeyear waiting period serves no rational function. There are no experience requirements or skill enhancement measures attached to it. It is simply a waiting period. The judge said there can be no legitimate governmental purpose that justifies one branch of the legal profession waiting for three years before being granted the right of appearance in the High Court and superior courts, while the other branch (advocates) has no waiting period imposed on them.

Judge Davis said it is not difficult to appreciate why recently admitted attorneys feel indignity at being told they must wait for three years “before they are proverbially allowed to talk where the adults talk”.

He pointed to the Constitution, which guarantees the freedom to choose a trade and profession, and remarked that it is irrational that the provisions curb this right without a reasonable or rational connection.

Judge Davis rejected the minister’s claim that the case was moot, saying Parliament had not clearly progressed with changing the law and the issue remains live until repealed. He ruled the section unconstitutional and referred the matter to the Constitutional Court for final determination.