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Ex Parte: Goosen and Others (2018/2137) [2019] ZAGPJHC 68

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Ex Parte: Goosen and Others (2018/2137) [2019] ZAGPJHC 68

27th March 2019

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Click here to read the full judgment on Saflii

This judgment addresses a referral to the full court by the Judge President, in terms of section 14(1) (b) of the Superior Courts act 10 of 2013.[1] The relevant portion of the referral reads:

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"Legal Issues:

3. Until 01 November 2018, the admission of Advocates was regulated by the Advocates Admissions Act 74 of 1964 ("the old Act"). On this day the Legal Practice Act 28 of 2014 ("the new Act") came into operation which consequently repealed the "old Act". The new Act contains additional requirements which a prospective advocate has to fulfil before he/she may qualify for admission as an Advocate. These requisites are contained in Section 24 and 26 of the new Act and include vocational training, a competency examination and community service.

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4. It appears that Section 115 of the Legal Practice Act 28 of 2014 may be ambiguous in the sense that it permits any person who was entitled to be admitted as an advocate under the old Act to be admitted as an advocate in terms of the new Act. The Section is not clear on the issue of compliance with the additional requirements as set out in Sections 24 and 26 therein. The different interpretations of Section 115 have led to conflicting Judgements which could be detrimental to the Advocates profession and the Judiciary if the true intention of the Legislature and meaning of this provision is not clarified.

5. The following issues were raised for the Full Court to consider:

5.1 Should applications for admission as an advocate that were filed prior to the commencement of the new Act on 01 November 2018 be granted or should such applications be considered on the basis of the new requirements as set out in the new Act? In other words, does section 115 of the new Act apply to applicants for admission as an advocate, whose applications for admission were pending in any court on 1 November 2018?

5.2 Does Section 115 of the new Act exempt applicants who filed their applications before the commencement of the new Act, from complying with the requirements in terms of the new Act?

5.3 If so, does such exemption apply to all such applicants, ad infinitum, and/or should provision be made for a cut off period within which applicants are found to qualify for exemption, should apply for admission?

6. The following additional issues are referred to the Full Court to also determine: -

6.1. Whether a person admitted as an attorney of the High Court before 1 November 2018 is required to:

6.1.1 have his or her name removed from the roll of attorneys before undergoing the practical vocational training prescribed for pupils who intend to be admitted and enrolled as advocates as contemplated in Regulation 7 of the Regulations promulgated under the LPA;

6.1.2 undergo the practical vocational training prescribed for pupils before converting his or her enrolment as an attorney to that of an advocate as contemplated in section 32(1)(a) of the LPA;

6.1.3 whether it is competent for the Legal Practice Council to impose as a condition for the conversion of enrolment contemplated in section 32(1)(a) of the new Act, that an attorney who wishes to convert his or her enrolment as an attorney to that of an advocate to undergo the practical vocational training prescribed for pupils who wish to be enrolled as advocates?

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