The attorney’s profession has well-established rules and practices that have been developed and observed over several years. One such rule is that an attorney with right of appearance could only practise in the division in which he/she has been enrolled (“Rule”). However, the commencement of the Legal Practise Act No. 28 of 2014 (“LPA”) has brought about a number of changes to the legal profession as a whole, for both attorneys and advocates, creating the need to determine whether the former well-established rules and practices will continue to apply under the new regime of the LPA.
Accordingly, this article seeks to inquire into whether the LPA has extinguished the Rule and whether it has extended the jurisdiction of attorneys with right of appearance to sign pleadings in a division other than the one in which he/she was enrolled.
THE RULE UNDER THE ATTORNEYS ACT(NO. 53 0F 1979) (“ATTORNEYS ACT”) READ WITH THE RIGHT OF APPEARANCE IN COURTS ACT (NO. 62 OF 1995) (“RIGHT OF APPEARANCE ACT ”)
Vuyo Mkwibiso, in his article titled Right of attorneys to appear in court: what rights have been extended,1 elegantly summarises the law relating to the Rule as it was under the Attorneys Act read with the Right of Appearance Act. My learned college noted that under the forementioned legislation, an attorney with right of appearance could act in two capacities. In the first instance, an attorney with right of appearance could act in their capacity as a de facto advocate and perform functions reserved for advocates of the High Court of South Africa, which included, inter alia, signing of pleadings and appearing in any division of the High Court.2 In the second instance, an attorney with right of appearance could act strictly in their capacity as an attorney with right of appearance, thus entitling them to perform functions such as signing of pleadings and appearing in the division of the High Court of South Africa in which they were enrolled.
The present article is focused on the latter of the two scenarios canvassed above, particularly the signing pleadings. The Rule that an attorney acting in such capacity was limited to practising in the division of the High Court of South Africa in which he/she was enrolled was authoritatively stated in the case of Liberty Group Ltd v Singh and Another.
The court in the Liberty case, held that “an attorney’s right to sign a combined summons qua attorney is limited to the division in which the attorney is admitted or enrolled, but an attorney with the right of appearance has the right to sign a combined summons qua advocate, without such limitation.”
The foresaid dictum clearly illustrates how under the old legislation, an attorney with right of appearance essentially wore “two hats”, each one attracting it’s on limitations.
EFFECT OF THE NEW LPA REGIME ON THE RULE
The Attorneys Act and Right of Appearance Act, being the legislation that formed the basis of the Rule, were repealed and replaced by certain provisions of the LPA.
Prior to the commencement of the LPA, the registrar of each division of the High Court of South Africa kept a roll of the attorneys who were enrolled to practise in their respective divisions. However, according to section114(3) read with S30(3) of the LPA, a new system has been adopted whereby the individual rolls previously kept by the respective registrars have been consolidated into one roll of practitioners which is kept by the Legal Practise Counsel (“LPC”).
Accordingly, one may interpret that, the consolidation of the individual rolls into a single roll of practitioners kept by the LPC and the fact that the legislation creating the Rule has been repealed, the Rule has fallen away. The foresaid view has been guided by various discussions by the writer hereof and members of the LPC in respect of their suggested interpretation of the relevant sections of the LPA.
Practically, this means that an attorney with right of appearance can sign pleadings in any division of the High Court of South Africa, provided that such attorney is acting in their capacity as an attorney with right of appearance, and not qua advocate. Accordingly, practitioners can no longer look to the signing of pleadings by an attorney from a different division as a technicality upon which that pleading can be deemed irregular.
In conclusion, and as suggested by the writer, the Rule of practice has been abrogated by the regime brought about by the LPA and presents an example of one of the many ways in which the LPA will change the landscape of the Attorneys profession as we know it.
Written by Sethu Khumalo Checked by Maurice Crespi and Simone Jansen Van Rensberg