The Legal Practice Act 28 of 2014 ("the LPA") came into effect on 1 November 2018 and the Legal Practice Council ("the LPC") issued an advisory note to all advocates on 18 April 2019 related to transitional arrangements.
In terms of the advisory note:
- Applications for the striking or suspension of members of a Bar Council or Advocates' Society which were instituted in court prior to 1 November 2018 should be completed by the applicable Bar Council or Society at its own cost; and
- Applications for the striking or suspension of members of a Bar Council or Advocates' Society instituted in court after 1 November 2018 must be transferred to the relevant Provincial Council of the LPC.
In Hutchinson Wild v LPC & Others, the Supreme Court of Appeal ("the SCA") dismissed an appeal which sought to set aside the advisory note. Additionally, the SCA provided clarity on the legal standing of a Bar Council / Advocates' Society to bring applications to strike an advocate's name from the roll.
Background facts
On 26 September 2017, the Eastern Cape Society of Advocates ("the ECSA") issued an application in the Grahamstown High Court in terms of the common law and the now repealed Admission of Advocates Act 74 of 1964 ("the AAA"). The ECSA sought an order that Advocate Wild be struck from the roll of advocates. On 10 January 2018, Advocate Wild brought an application in the Grahamstown High Court to review the decision of the ECSA to institute the striking-off application against her, which application is still pending.
Advocate Wild sought to have the advisory note reviewed and set aside in terms of the Promotion of Administrative Justice Act 3 of 2000 ("PAJA"). The grounds for the review were that:
- In issuing the advisory note, the LPC contradicted section 116(2) of the LPA as pending strike-off applications must be continued by the LPC and not by a Bar Council or Advocates' Society;
- Advocate Wild was not given an opportunity to be heard, and no proper enquiry was conducted, prejudicing her;
- Advocate Wild was forced into expensive litigation to defend the strike-off application; and
- The LPC's decision to issue the advisory note was not authorised by the LPA and the Regulations.
SCAs findings
The advisory note merely related to a transitional period and explained how the transition was to be carried out. It did not introduce new procedures nor change any laws or procedures contained in the LPA. The strike-off application instituted by the ECSA against Advocate Wild is what had the capacity to affect her rights, not the advisory note. Accordingly, Advocate Wild failed to demonstrate that the advisory note had the capacity to affect her rights and that it had a direct, external legal effect. The issuing of the advisory note did not constitute administrative action in terms of PAJA and could not be reviewed.
Section 116(2) had to be interpreted in light of section 44(2). The latter section provides that nothing in the LPA precludes a juristic entity from applying to the High Court for appropriate relief in connection with any complaint or charge of misconduct against an advocate. Advocates' Societies are juristic entities, and they are not precluded from bringing strike-off applications.
The court rejected the submission that the LPC has the exclusive jurisdiction to institute strike-off applications. The LPA does not strip Bar Councils / Advocates' Societies from being custodians of the advocates' profession, nor does the LPA intend to afford the LPC exclusive jurisdiction in this regard. The restructuring of the legal profession brought about by the LPA did not alter the common law position that Bar Councils / Advocates' Societies have the legal standing to institute strike-off applications. If the LPA sought to alter this position, it would have done so expressly.
Conclusion
The SCA held that the long-standing recognition by courts of the legal standing of Bar Councils / Advocates' Societies to bring strike-off applications is not ousted by the LPA. On the contrary, this legal standing is preserved by section 44(2) of the LPA.
Advocate Wild's application was dismissed with costs, including the costs of two counsel.
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