INTRODUCTION

111 and attorneys The South African legal profession is divided into two branches: advocates and attorneys. Although both serve the administration of justice, the professions of and attorney differ in several respects: The advocate is generally the specialist in forensic skills and in giving advice in legal matters, whereas the attorney has more general skills and is often, in addition, qualified in conveyancing and notarial practice. The attorney has direct links (often of a long­standing nature) with the client. The advocate has no direct relationship with the lay client and acts on brief in a particular matter. Although some attorneys have the same academic qualifications as advocates, their practical schooling is markedly different. Advocates and attorneys occupy themselves with different kinds of litigious work. The advocate generally prepares pleadings and presents clients' cases to the courts whereas the attorney takes care of the investigation of the facts, the issuing and service of process, the discovery and inspection of documents, the procuring of evidence and the attendance of witnesses, the execution of judgments and so on. Each applies his or her own skills for the benefit of the client.1

In the past advocates had the exclusive right of audience in the higher courts but since 1995 certain attorneys2 also have that right. In general, however, litigation in the higher courts is conducted by advocates briefed by attorneys. The advocates' profession is a referral profession whereas attorneys accept work from the public directly. It follows that the attorney is in overall charge of the litigation of his or her client.3 An advocate in general takes work only on the instructions of an attorney. The rule requires that an attorney initiates the contact between an advocate and his or her client, negotiates about and receives fees from the client (on his or her own behalf and that of the advocate ), instructs the advocate specifically in relation to each matter affecting the client's interest (other than the way in which the advocate is to carry out his or her professional duties), oversees each step advised or taken by the advocate, keeps the client informed, is present as far as is reasonably possible during interaction between the client and the advocate, may advise the client to take or not to take counsel's advice, administers legal proceedings and controls and directs settlement negotiations in communication with his or her client. An advocate, generally does not take instructions directly from his or her client, does not report or account directly to the client, does not handle the money of the client, acts only in terms of instructions given by the attorney in relation to matters which fall within the accepted skills and practices of his or her profession, and does not sign, serve or file documents and notices or receive them from the opposing party or his or her legal representatives.4 Only attorneys are entitled to do certain work for remuneration, for instance to initiate litigation in the courts, draft certain documents and render certain services. The attorneys' branch is governed by statute to a greater extent, than is that of the advocates, for example practical training, admission and removal from the roll and the control of trust moneys. The academic qualifications and the practical training required for admission as an advocate or an attorney differ. In some respects the ethical rules of the two branches differ. 1 In re Rome 1991 3 SA 291 (A) 306; De Freitas v Society of Advocates of Natal 2001 6 BCLR 531 (A); 2001 3 SA 750 (SCA) 757. 2 Holding an LLB degree or its equivalent or having 3 years practical experience: Right of Appearance in Courts Act 62 of 1995s 4(1). 3 Society of Advocates of Natal v De Freitas (Natal Law Society Intervening) 1997 4 SA 1134 (N) 1140­ 1157; 1997 4 All SA 452 (N): this judgment gives an incisive historical overview of the dual nature of the legal profession. On appeal: De Freitas v Society of Advocates of Natal supra 757; Competition Commissioner v GCB of SA 2002 4 All SA 145 (SCA); 2002 6 SA 606 (SCA). See also General Council of the Bar of SA v Van der Spuy 1999 1 SA 577 (T). 4 Rösemann v GCB of SA 2003 4 All SA 145 (SCA); 2004 1 SA 568 (SCA) 577.

ADVOCATES

GENERAL

112 Basic distinctions The Emperors Leo and Anthemius in their advice to Callicrates, praetorian prefect of Illyria, stated in the year 469 AD: "Advocates who explain ambiguous questions which arise in the course of litigation, and who, by the ability of their defence, frequently, in both private and public matters, restore the fortunes of those who have been ruined, are not less useful to the human race than if they had preserved their country and their relatives by taking part in battles and receiving wounds. For We, do not think that those who are equipped as soldiers with swords, shields and cuirasses should be considered the only ones who protect our Empire, but that the advocates, also, who have charge of cases contend as soldiers and, trusting in the glorious power of eloquence, protect the hopes, the lives, and the children of those who are distressed."1 These sentiments are endorsed by the Roman­Dutch writers,2 and are equally applicable in modern times. The word "advocate" is derived from the Latin advocatus, and means the person called to the side of another to render him assistance. Gradually the meaning became specialised and the term advocatus came to be applied to the person who undertook to assist litigants in court by speaking on their behalf.3 Various writers have attempted definitions of the profession. According to Van Leeuwen, advocates are those who verbally, in writing or otherwise conduct the cases of others with their sound advice and according to law.4 The advocates in , as the in Great Britain, form a separate branch of the profession of . They are primarily experts in advocacy, which is the art of presenting the client's case in court. There is, however, a good deal of further specialisation within their ranks with certain advocates specialising in, for example, taxation, the law of contract, company law, expropriation, criminal law, and so on. A considerable part of the work of these specialists consists in advising on matters that do not result in litigation. Ideally there should be a duly qualified trial or advocate in every trial. In a well qualified advocate legal knowledge, forensic skills, professional ethics and good court­room etiquette are combined in the furtherance of the administration of justice. Once a client has placed the case in the hands of counsel, the latter has complete control of it.5 Any party may appear at a trial in person but may be represented in the higher courts only by a person duly enrolled as an advocate of that court or by certain attorneys.6 The statutory provision that the court may permit an attorney to discharge the functions of an advocate in any proceedings pending before it if there is no advocate available or willing to act has become redundant.7 A company may not be represented by its shareholder or director.8 Generally speaking, advocates can be described as specialists in litigation whereas attorneys specialise in other fields. An advocate cannot appear in civil matters unless he or she is instructed by an attorney or is requested by the court to appear as amicus curiae or is permitted to appear pro amico. Even in the latter case the bar councils require a brief from an attorney. In criminal matters in the High Courts the advocate may accept instructions directly from the client in the case of dock briefs or he or she may be appointed pro deo by the court or be instructed by the Director of Public Prosecutions, for example, in criminal appeals or as a on circuit. The normal position is, however, that he or she is also instructed in criminal cases by an attorney or the Legal Aid Board. In short, the essential distinction between advocates and attorneys is that the profession of the former is a referral profession and that of the latter not. Advocates who disregard this are subject to disbarment. The Magistrates' Court Rules concerning the signing of pleadings were not intended to abolish the longstanding division between the professions.9 Dual practice as both advocate and attorney is not permitted.10 Advocates and attorneys are as much a part of the courts in which they practise as the judges who preside over them. Their duty is not only to their clients but also to the court. Although they are not court employees and practise independently in private practice, they are often loosely referred to as officers of the court, to emphasise their duty to the administration of justice and the court's disciplinary relationship with its practitioners.11 In Roman times advocates were free from civil duties,12 and in Roman­Dutch times they also formerly enjoyed certain privileges,13 but nowadays no privileges attach to the profession. 1 D 2 7 14; Scott's translation vol 12 191; see too C 2 8 1, 2 8 4. 2 Van Leeuwen RHR 5 4 1, Cens For 2 1 7; see Kersteman Woordenboek for definition of "advocaat"; Voet Commentarius 3 1 1. 3 Huber HR 4 18 4; Wessels History of the Roman­Dutch Law 191 192; see Kersteman for definition of "advocaat". On the history of the profession elsewhere, see Nemo 1911 SALJ 328 and on the profession in general, see Bamford 1970 SALJ 338.; on the origin of the profession of advocate see Van Zyl (1989) 4 Consultus 2 and Bergenthuin (1997) Consultus 5 49. 4 RHR 5 4 1; Voet 3 1 1. "Advocatus est, qui, alterius causae contraversae, in Jure Judiciove, sive perorando, sive consilia suggerendo, sive alio quovis modo operam tribuit": Van Leeuwen Cens For 2 1 7 2. "Officium advocatorum est, clientis sui desiderium in Jure, Judiciove fideliter exponere et adversarii intentioni contradicere": Van Leeuwen Cens For 2 1 7 6. See also Merula Manier van Procederen 4 17 12, 4 17 6; Van der Linden Jud Pract 1 8 6; Kersteman for definition of "advocaat". 5 R v Matonsi 1958 2 SA 450 (A); R v Patrick 1962 1 SA 263 (FC); S v Bennett 1994 1 SACR 392 (C). 6 Ie only a duly admitted advocate and certain attorneys have the right of audience before a superior court on behalf of another. The essential distinction between an advocate and an attorney that the attorney's court appearance is limited to the lower courts has fallen away; see par 111 ante. 7 Admission of Advocates Act 74 of 1964s 10; Herbstein and Van Winsen Civil Practice 449. 8 Yates Investments (Pty) Ltd v Commissioner for Inland Revenue 1956 1 SA 364 (A); Ramsey v Fuchs Garage (Pty) Ltd 1959 3 SA 949 (C); Dormehl's Garage (Pty) Ltd v Magagula 1964 1 SA 203 (T); Arma Carpet House (Jhb) (Pty) Ltd v Domestic & Commercial Carpet Fittings (Pty) Ltd 1977 3 SA 448 (W); Hallowes v The Yacht "Sweet Waters" 1995 2 BCLR 172 (D); 1995 2 SA 270 (D). The decision to the contrary in California Spice & Marinade (Pty) Ltd in re: Bankorp v California Spice & Marinade (Pty) Ltd, Fair O'Rama Property Investments, Tsaperas & Tsaperas 1997 4 All SA 317 (W) is in conflict with long­standing practice and binding authority; but see Lees Import and Export (Pvt) v Zimbabwe Banking Corporation Ltd 1999 10 BCLR 1181 (ZS); 1999 4 SA 1119 (ZS). 9 Society of Advocates of Natal v De Freitas (Natal Law Society intervening) 1997 4 SA 1134 (N); 1997 4 All SA 452 (N); De Freitas v Society of Advocates of Natal 2001 6 BCLR 531 (A); 2001 3 SA 750 (SCA) 756­758; Commissioner, Competition Commission v GCB of SA 2002 4 All SA 145 (SCA); 2002 6 SA 606 (SCA); General Council of the Bar of SA v Van der Spuy 1999 1 SA 577 (T); bar rule 5.12 The Cape Bar Rules contain an exception in the case of opinions. Rösemann v GCB of SA 2003 4 All SA 211 (SCA); 2004 1 SA 568 (SCA) 577. 10 The system of dual practice recognised in Natal until 1937 with retention of existing rights to dual practice as preserved by the Natal Advocates and Attorneys Preservation of Rights Act 27 of 1939 s 1 has become extinct. 11 Cilliers and Luiz 1995 THRHR 608 612. 12 Except the duty to sit as arbitrator: C 2 7 6. 13 See Kersteman for defintion of "advocaat". ORGANISATION OF THE BAR

113 Members and structure The profession in South Africa is organised into societies of practising advocates called bars. There is a bar at the seat of every provincial and local division of the of South Africa although there is one bar for Pietermaritzburg and Durban and one bar for Grahamstown and Port Elizabeth. There are ten bars in the , namely the Cape, Eastern Cape, KwaZulu­Natal, Northern Cape, Free State, Pretoria, Witwatersrand, Bisho, Transkei and Northwest bars.1 Membership of the respective bars is limited to advocates practising in private practice. Members of the bar are obliged to occupy chambers together at a place or places determined by the society.2 They are also obliged to hold themselves available to do work pertaining to the profession of advocate. This includes pro deo work at the request of the court. Membership of individual bars is regulated by their constitutions which may also provide for, inter alia, membership of associate members, university lecturers, the Director of Public Prosecutions and his deputy, the family advocate and honorary members. The General Council of the Bar has formulated a set of rules of professional conduct, referred to in this title as "the bar rules", that are applicable to all bars and may only be departed from by an individual bar council in exceptional circumstances. The bar rules are not exhaustive and some individual bars have additional rules. These are not referred to herein except where they are of more than local interest. The objects of the bar are to promote and protect the interests of the profession and of the members of the bar, to supervise the conduct of members, to consider, deal with and promote the teaching and practice of the law and administration of justice and to form a constituent bar of the General Council of the Bar and further the aims. of the latter An applicant for membership of the bar is admitted upon proof of good character having been admitted as an advocate of the High Court and after a period of pupillage normally lasting a year. This pupillage is undergone in the chambers of a member of the bar who is appointed as his or her mentor and is obliged to teach the pupil. This instruction is of a practical nature.3 Pupils are then required to pass the national bar examination of the General Council of the Bar. No person who at any time practised as an attorney may become a member of the bar as long as he or she has capital invested in his or her former practice as an attorney. The management of the bar vests in the bar council chosen annually by its members. It has wide powers, inter alia, in respect of rules of professional conduct and etiquette and the enforcement of discipline. The various bars are federated in the General Council of the Bar of South Africa. The constituent bars are those set out above. Representation of each constituent bar of the general council is related to the size of such bar.4 The council consists of representatives of the constituent bars and the annually elected executive consisting of the chair, deputy chair and vice chairpersons and an honorary secretary, assistant honorary secretary and such further members as are decided upon by resolution, the chairperson of the National Bar Examination Board ex officio, the outgoing chairperson of the council and representatives of any associate bar.5 The General Council of the Bar has, as its objects, to consider, promote and deal with all matters concerning the teaching and practice of the law and the administration of justice; to deal with all matters affecting the profession and to take action thereon; to uphold the interests of advocates in South Africa; to act within the profession of advocacy as an agent of change in post­apartheid South Africa and to strive towards the ideal of non­racialism and non­sexism in an open society.6 The council has no jurisdiction over any constituent bar or its members except as follows: It has the power to hear and decide appeals by members from decisions of constituent bars in disciplinary proceedings and appeals in connection with members' fees, as well as to hear and decide matters provided for in the constitution of a constituent bar or when requested by a majority vote of the members of a bar. 7 It may further on its own initiative or whenever requested by a constituent bar so to do, recommend rules of professional etiquette and practice for adoption by the bars or a bar.8 The council has the power to examine and take appropriate action in regard to legislation and the administration of justice; to formulate evidence for submission to government or provincial commissions or committees or other bodies; to express its opinion in such quarters as it deems from time to time, to be desirable; to make or join in making representations to ministers or other persons or bodies on matters relating to the profession or its members; to refer to any constituent bar any matter concerning the interests or conduct of any member or members of it.9 The general council of the bar is financed by means of levies on constituent bars in proportion to the number of their members. It is a legal persona.10 The general council may by unanimous resolution admit a bar which is not a constituent bar as an associate bar of the council.11 Independent practitioners: There is no statutory prescript which renders membership of the organised profession obligatory. There are a number of practising advocates who are not members of the bar. They do not adhere to a rule that advocates occupy chambers together. Many practise from their homes. In 1994 some formed a society called the Independent Association of Advocates of South Africa.12 A feature of its constitution which distinguished it from the bar, namely that its members are entitled to act without involvement of an attorney, was declared unprofessional conduct some of and its members suspended by the court.13 Membership of a bar is not a prerequisite for practise. 1 In addition there are a number of satellite bars, eg in Polokwane, Nelspruit, Potchefstrooom. 2 But see Commissioner, Competition Commision v GCB of SA 2002 4 All SA 145 (SCA); 2002 6 SA 606 (SCA). 3 1972 SALJ 491. 4 Clause 3(b) of its constitution allocates to the 4 big bars 4 delegates each, the Eastern Cape bar 3 delegates, the Free State and Transkei bars 2 each and the rest 1 each. Clause 3(c) seeks to ensure representivity with reference to race and gender. 5 Clause 3(e). This clause also grants to the (black) Advocates for Transformation society a disproportionate say in the nomination of delegates. 6 Clause 2. 7 Clause 6(b). Clause 6(c) provides for the constitution of committees to hear these appeals. 8 Clause 6(e). 9 Clause 6(f). 10 Clause 6(g). 11 Clause 6A. Such associate bar has to conform to the GCB's code of ethics and conduct, adhere to the referral principle, be independent, have academic qualifications on a par with those of the members of constituent bars, have an induction system similar to the pupillage system and be financially and organisationally sound. 12 General Council of the Bar of SA v Van der Spuy 1999 1 SA 577 (T); Rösemann v GCB of SA 2003 4 All SA 211 (SCA); 2004 1 SA 568 (SCA) 577. 13 Society of Advocates of Natal v (Natal Law Society Intervening) 1997 4 SA 1134 (N); 1997 4 All SA 452 (N); On appeal De Freitas v Society of Advocates of Natal 2001 3 SA 750 (SCA); 2001 6 BCLR 531 (SCA).

114 Number of advocates and seniority In Roman times membership of the bar was limited to a fixed number.1 In Roman­Dutch times the number of advocates was not limited nor is it limited today.2 In Roman times seniority, that is the order of precedence on the roll, could not be changed.3 This was followed in the seating arrangements in the court of the Netherlands.4 In cases of major importance two or more advocates were employed in Roman­Dutch practice.5 Not more than two advocates on each side were entitled to address the court of Holland.6 In Roman times the judge had to see to an equal distribution of talents amongst opposing advocates, for the proper administration of justice.7 This practice was not followed in Voet's time however in the court of Flanders, because of the small numbers of advocates available, one could not employ more than two advocates, lest the chance of obtaining counsel be snatched from an opponent.8 Nowadays in trials in the High Court only one advocate per party may address the court upon an application for absolution from the instance and at the conclusion of the trial one or more advocates per party.9 The case for each party may be opened by one advocate only.10 The number of advocates that a party may brief is unlimited (except by practical and financial considerations). Senior counsel are all advocates holding letters patent. Previously these were issued by the queen and since South Africa became a Republic, they have been issued by the president. The title held by seniors is SC (senior consultus) or QC by those of pre­Republic vintage. Senior counsel wear silky gowns and lead junior counsel when they are briefed with them. They are called seniors, silks or leaders. The status of senior counsel is as a general rule granted by the president of the Republic to advocates whose wide experience, extensive practice and unblemished character justify the grant of silk.11 It is granted only after application by the advocate concerned on recommendation of the chairperson of the bar council and the judge president of the division of the High Court where he or she practises.12 Senior counsel rank in seniority, in accordance with the date of their letters patent.13 All counsel who are not senior counsel are junior counsel. The term does not refer to age or experience. The seniority of junior counsel is reckoned from the time when he or she was first admitted as an advocate in the Republic or Namibia,14 provided that if his or her name has at any time been removed from the roll of advocates, and he or she has thereafter been readmitted as an advocate, the person's seniority will date from the time of readmission, save that such time must be antedated for a period equal to the total of any periods during which his or her name was on the roll of advocates.15 The old general rule that senior counsel may not appear as advocate in any court of law without a junior, derived from the English practice, was first modified and later abolished in toto. In practice generally throughout South Africa senior counsel are only employed in cases where the employment of more than one counsel is justified. Where two or more counsel are briefed together on the same side, the leader has the conduct of the case. Where two junior counsel only are briefed on the same side seniority determines who leads. Seniority may be waived, provided that no senior counsel may waive seniority to a junior counsel.16 A junior carries his or her robe in a blue bag unless a senior has presented the junior with a red bag in recognition of services rendered. Seniority is of importance, internally at the bar itself17, at the seating arrangements in court and in respect of junior counsel at the application for silk. Seniority is also reflected by the difference in fees between silks and juniors. The appointment of senior counsel is not withdrawn by the president except in the case of persons who, while in the civil service, were so appointed. Their appointment may be withdrawn upon their request. They then revert to junior status.18 The court in admitting an advocate cannot antedate the order and so antedate the standing of that advocate.19 1 C 2 17 13, 2 8 5, 2 8 7, 2 7 17, 2 7 13, 2 7 11. 2 Van Leeuwen RHR 4 5 41, Cens For 2 1 7 4; Merula Manier van Procederen 4 17 3. 3 C 2 8 7 (2). 4 Van der Linden Jud Pract 1 8 6. 5 Merula 4 17 4, 4 17 6. 6 Voet Commentarius 3 1 11; Van Leeuwen Cens For 2 1 7 3. 7 C 2 6 7. 8 Voet 3 1 11. 9 High Court Rules r 39(6) (10). 10 R 39(5) (7). 11 Wellworths Bazaars Ltd v Chandlers Ltd 1947 4 SA 453 (T) 461­462. 12 Bar rule 1.8. A junior counsel who wishes to make application for silk (senior status) must do so after obtaining such consent as is prescribed by his or her bar and shall pursue it in the manner laid down by the Bar Council. 13 Bar rule 1.7. 14 Ex parte Dold 1947 3 SA 201 (N); bar rule 1.7. 15 Bar rule 1.7. 16 Bar rule 1.7. 17 In some bars internal seniority takes precedence over the seniority of the GCB rules where members of the same bar are involved. Internal seniority is determined by the order in which the membership register is signed. 18 Admission of Advocates Act 74 of 1964s 8A amended by the Admission of Advocates Amendment Act 55 of 1994. 19 Ex parte Dold supra.

ADMISSION

115 Application for admission Since the commencement of the Admission of Advocates Act1 no person may be admitted to practise as an advocate save in accordance with its provisions.2 In terms of the statute3 any application for admission to practise as an advocate must be made in the manner prescribed in the rules of the High Court.4 The rules provide that the applicant must approach the court by way of application,5 ex parte, for admission to practise and for authority to be enrolled as an advocate. At least six weeks before the day on which his or her application is to be heard by the court, the applicant must: (a) give written notice to the registrar of the date on which the application is to be made; (b) deliver to the registrar the original and a copy of all the documents in support of the application and an affidavit stating his or her identity number and whether he or she has at any time been struck off the roll of advocates or suspended from practice by the court; (c) deliver to the registrar an affidavit by an attorney or a commissioner of oaths verifying his or her identity with reference to the identity document;6 (d) if he or she was previously admitted as an attorney, deliver to the registrar a certificate from the law society that in its opinion he or she is a fit and proper person; (e) serve a copy of the documents and affidavit referred to above on the secretary of the Bar Council or the society of advocates of the division concerned.7 The applicant must serve a copy on the secretary of the bar council of the society of advocates of the division concerned of all further documents and declarations filed prior to the hearing.8 The contents of the application must consist of allegations to prove compliance with the relevant statutory prerequisites. 1 74 of 1964; ie on 18 February 1966. 2 S 2(1). 3 S 2(2). 4 Ie made or remaining in force in terms of s 43 of the Supreme Court Act 59 of 1959. 5 See High Court Rules r 3A(1) read with r 6. 6 R 3A(3) This rule was introduced as a result of the background to S v Mkhise, S v Mosia, S v Jones, S v Le Roux 1988 2 SA 868 (A). 7 This would appear to be a misconception or a misprint. The bar council is merely the directorate of the society of advocates. 8 R 3A(3). The words "the division concerned" would refer to the division where the application is made and not the division where the applicant resides.

REQUISITES FOR ADMISSION

116 General The Admission of Advocates Act1 provides that, subject to the provisions of any other law, any division must admit to practise and authorise to be enrolled as an advocate any person who upon application made by him or her satisfies the court of certain facts. The power to admit an advocate is not limited to the division where the applicant resides or where he or she intends to practise. The application must be made by the applicant himself or herself. He or she has to satisfy the court upon a preponderance of probabilities of the correctness of his or her allegations.2 An applicant has to be over the age of 21 years.3 An applicant who is below that age but has received venia aetatis or venia agendi can, in view of the clear wording of the Act, not be admitted as an advocate. In Roman times persons under the age of 17 years were disqualified from appearing as advocates.4 It would appear that in Roman­ Dutch times no such age limit was set.5 The applicant must satisfy the court that he or she is a fit and proper person to be admitted to practise and authorised to be enrolled as an advocate.6 A full disclosure of all material facts relating to the question whether an applicant is a fit and proper person must be made. Failure to do so is a breach of good faith.7 In admitting or readmitting an applicant it is the court's duty to be satisfied that the applicant is a proper person to be allowed to practise and a person whose admission or readmission to the ranks involves no danger to the public and no danger to the good name of the profession.8 The grant or refusal of the application is a matter in the discretion of the court9 and a court's finding that an applicant is not fit to be admitted will only be interfered with on appeal upon recognised grounds.10 Where the issue depends on oral evidence the opinion of the trial court will not lightly be disturbed on appeal.11 It is the duty of an advocate to administer and to further the administration of justice.12 The profession of an advocate requires the utmost good faith from its practitioners and from aspirant practitioners.13 Van der Linden states the following requirements for an advocate14: (a) an honest and virtuous character. This excludes persons intending to practise with disgraceful intrigues; those an important motive of whom is base avarice; and those who abuse the law and its practice to harass and harm their fellowmen; (b) a proper15 knowledge of the principles of Roman law; and (c) a proper knowledge of the principles of the modern law. In Roman times a physical defect like deafness and blindness was an absolute disqualification.16 Also disqualified were homosexuals,17 those convicted of a capital crime,18 those convicted of false accusation in court,19 and gladiators,20 and all branded with infamy.21 The formal brand of infamy was under the civil law deemed to be imposed on certain offenders against social usage or civil and criminal law. They included panders, bigamists, persons who married a widow during the annus luctus, thieves, robbers, persons taken in adultery, actors, gladiators, cashiered soldiers and all persons who had been condemned by a judge for a fraud committed in connection with a mandate, deposit, guardianship or partnership.22 In Roman­Dutch times the formal infamy of the civil law was in disuse.23 This does not mean, however, that in Roman­Dutch times persons who had committed acts which previously were regarded as constituting formal infamy were allowed to become advocates. In Roman law persons were disqualified who were under curatorship,24 slaves,25 or freedmen.26 These disqualifications also applied in Roman­Dutch law as there is no indication that they were no longer applicable and as the Roman law was received in the Netherlands. In Roman law women were not allowed to appear for others. The reason that they should be prevented from interfering in the cases of others was that this would not become the modesty of their sex. They should not be allowed to perform the duties of men. The origin of this restriction was an extremely shameless woman called Calpurnia whose effrontery and annoyance gave rise to the edict.27 It would appear that in Roman­Dutch times women were also disqualified on grounds of their sex. Religion was not a disqualification for admission as an advocate. The position was different in later Roman times. The emperors Leo and Anthemius ordered that no one be admitted as an advocate "unless he has been initiated into the sacred mysteries of the Catholic religion".28 Surreptitious practice contrary to this decree led to confiscation of property and perpetual exile.29 In Roman­Dutch times religion could still be a disqualification. Although differences between Christians on basic and other tenets of the faith did not debar them from admission, one who at a foreign university had obtained a degree and bound himself by oath to uphold the papal religion could not be admitted unless he renounced the oath of allegiance.30 As non­Christians could not take the oath, they could therefore not be admitted as advocates. In 1658 a Jewish doctor iuris was, after several days deliberatie by the hoogeraad, refused admission for this reason.31 In the Colony of the Cape of Good Hope Jews were not debarred from admission as advocates.32 In Merula's time the examiners who were to examine prospective advocates were to determine whether the applicant: (a) was of the Christian faith; (b) had good manners, was intelligent and wise; (c) was born in wedlock; (d) was learned; (e) had graduated in law and at what place.33 In the Transvaal (ZAR) it was held that a criminal conviction was not per se a disqualification for admission where the offence was of a political nature committed without any idea of personal gain or revenge.34 In terms of the Women Legal Practitioners Act of 192335 women became entitled to be admitted and to practise and to be enrolled as advocates subject to the same terms and conditions as those that applied to men. A criminal conviction is prima facie proof that the applicant committed the offence. If it is of a sufficiently serious nature it is treated as prima facie proof that he or she is unfit to be on the roll of advocates. The onus is then on the applicant to show that he or she was wrongly convicted or that despite this he or she is a fit and proper person because he or she has genuinely, completely and permanently reformed. Unless there is a proper and correct appreciation by the applicant of a defect of character or attitude it is difficult to see how the defect can be cured, corrected or eradicated, and how there can be true reformation which is reliable and lasting. Therefore an applicant cannot deny the correctness of the conviction and in the alternative allege that he or she has reformed.36 The fact that the applicant is a retired judge would not disqualify him or her from practice.37 An applicant whose name has been removed from the roll for misconduct must in an application for reinstatement, satisfy the court beyond doubt that he or she is a reformed character and that it would be right and proper to restore his or her name to the roll.38 1 74 of 1964s 3. 2 Swain v Society of Advocates, Natal 1973 4 SA 784 (A) 787; Olivier v Die Kaapse Balieraad 1972 3 SA 485 (A) 496. 3 S 3(1)(a). 4 D 3 1 1 (3); Voet Commentarius 3 1 2. 5 See Van Leeuwen RHR 5 6 1 and Merula Manier van Procederen 4 17 2. De Groot was admitted at the age of 16; Voorrede of Fockema Andreae to De Groot's Introduction. 6 S 3(1)(a); Hayes v The Bar Council 1981 3 SA 1070 (ZA)1079G. 7 Ex parte Cassim 1970 4 SA 476 (T) 477; Ex parte Swain 1973 2 SA 427 (N) 429; cf Ex parte Gunguluza 1971 4 SA 212 (N) 213; Ex parte Singh 1964 2 SA 389 (N). 8 Ex parte Knox 1962 1 SA 778 (N) 784; Ex parte Swain supra 434; Hayes v The Bar Council supra 1081H­1082D 1086H; S v Mkhise, S v Mosia, S v Jones, S v Le Roux 1988 2 SA 868 (A) 873E. On the principles applied upon reinstatement see Ex parte Caminsky 1958 3 SA 249 (N). 9 S v Mkhise, S v Mosia, S v Jones, S v Le Roux supra 873F; contra Hayes v The Bar Council supra 1079H 1084D. 10 Olivier v Die Kaapse Balieraad supra 495; Swain v Society of Advocates, Natal supra 786; Beyers v Pretoria Balieraad 1966 2 SA 593 (A) 605G; Kekana v Society of Advocates of SA 1998 4 SA 649 (SCA) 654. 11 Swain v Society of Advocates, Natal supra 787. 12 Ex parte Cassim supra 477. 13 Ex parte Swain supra 429; Ex parte Cassim supra 477; Toto v Special Investigating Unit 2000 2 All SA 91 (E); 2001 1 SA 673 (E) 683. 14 Jud Pract 1 1 1. 15 The word used is "Behoorlike". 16 D 3 1 1; Voet 3 1 2. 17 D 3 1 1. 18 D 3 1 1 (6). 19 D 3 1 1 (6). 20 D 3 1 1 (6). 21 D 3 1 1 (8). 22 D 3 2 1. 23 Voet 3 2. See also 3 1 2. 24 D 3 1 2, 3, 4. 25 Voet 3 1 2. 26 C 2 6 2. 27 D 3 1 1 (5); Voet 3 1 2. 28 D 1 4 15, 1 4 17; Voet 3 1 2. 29 D 1 4 15; C 2 6 8. 30 Voet 3 1 2. 31 Merula 4 17 2 1; Kersteman Woordenboek. 32 Ex parte Kriger 1945 CPD 252 257. 33 Merula 4 17 2. 34 Ex parte Krause 1905 TS 221. 35 7 of 1923, re­enacted by the Women Legal Practitioners Act 11 of 1963, which was repealed by s 86 of the Attorneys Act 53 of 1979. The provision had become redundant as the Admission of Advocates Act 74 of 1964 provided for the admission of both sexes as advocates. Now the Constitution of the RSA, 1996 prohibits discrimination on the grounds of sex. On women barristers in SA and elsewhere see 2004 (8) Advocate 23, and 1990 (4) Consultus 12. 36 Ngwenya v Society of Advocates, Pretoria 2006 2 SA 88 (W) 90 92. 37 Ex parte Burgers (1886) 2 SAR 107. 38 Tatham v Director of Public Prosecutions 1923 TPD 407.

117 Academic qualifications The applicant has to prove that he or she is duly qualified.1 The following persons are deemed to be duly qualified: (a)(i) Any person who has satisfied all the requirements for the degree of baccalaureus legum of any university of the Republic after pursuing a course of study for that degree of not less than four years;2 (ii) A person who, after he or she has satisfied all the requirements for the degree of bachelor other than the degree of baccalaureus legum of any university of the Republic, or after having been admitted to the status of any such degree by any such university, has satisfied all the requirements for the degree of baccalaureus legum of any such university after pursuing courses of study for such degrees of not less than five years in the aggregate. The above can be summarised by stating that the requirements are: satisfaction of all the requirements for the degree of baccalaureus legum of a university in the Republic after study of at least four years. The requirements of English, and Latin have been repealed; (iii) A person who has satisfied all the requirements for a degree or degrees of a university in a country which has been designated by the Minister of Justice, after consultation with the General Council of the Bar of South Africa, by notice in the Government Gazette, and in respect of which a university in the Republic with a faculty of law has certified that the syllabus and standard of instruction are equal or superior to those required for the degree of baccalaureus legum of a university in the Republic; (b) The minister may in terms of the Recognition of Foreign Legal Qualifications and Practice Act3 grant exemption from the requirement of a baccalaureus legum degree to "exiles". This is a temporary measure which has been extended from year to year; (c) Any person who before the commencement of the Admission of Advocates Act4 passed any examination or satisfied all the requirements for any degree which in terms of any law repealed by section 13 of the Act would, immediately before commencement of the Act, have entitled him or her to be admitted to practise as an advocate on compliance with any other requirement of the said law with regard to matters other than such examination or degree. "On compliance with any other requirement" includes the required statutory examination under the 1921 Act5 in Roman­Dutch and statute law to be written by persons in possession of certain overseas academic qualifications. This means that the Admission of Advocates Act6 deems to be duly qualified, a person who on 18 February 1966 (the date of commencement of the Act) had obtained a degree mentioned in section 1 of the 1921 Act, for such degree would immediately before the commencement of the Act have entitled him or her to be admitted upon compliance with the "other requirements" of the 1921 Act, namely that he or she passed the examinations in Roman­Dutch law and statute law.7 A prerequisite to the above is, however, the possession of the academic status and degree required by the legislator.8 The word "degree" as used here and elsewhere in the Act refers to an academic qualification obtained by a person consequent upon the successful completion of a course of study prescribed by a university for the degree in question. The "Degree of an Utter ", to which one is called in England upon admission as a barrister­at­law, is not such a degree.9 Due to the effluxion of time the above paragraphs are of academic interest only. To a lesser degree this is also true for what follows; (d) Any person who: (i) at the commencement of the Act was registered as a student at a university referred to in section 1 of the 1921 Act and was engaged in a course of study with a view to obtaining a certificate, diploma or degree referred to in the said section; and (ii) satisfied all the requirements for the said certificate, diploma or degree and on or before 31 December 1974 passed the examination in Roman­Dutch law and the statute law of the Republic referred to in section 2 of the 1921 Act or is in terms of that section not required to pass the examination in both or either of the said subjects, is also deemed to be duly qualified.10 The examinations in Roman­Dutch law and statute law were prescribed by the chief justice by means of regulations.11 The effect of these regulations was that all the persons with foreign law degrees which were by various Acts pertaining to the admission of advocates regarded as adequate academic qualifications would nevertheless before admission have had to write the prescribed examinations in Roman­Dutch law and the statute law of the Republic of South Africa.12 The intention of the Admission of Advocates Act13 was clearly not to reduce the qualifications for admission of advocates. It merely created a transitional period leading to the position that after 1974 only South African law degrees would be recognised.14 The words "all the requirements for the said degree" in section 3(2)(c)(ii) should be strictly interpreted as referring only to the very degree in respect of which the applicant had been registered as a student in terms of section 3(2)(c)(i);15 (e) Any person who at the commencement of the Act was registered as a student at any university or university college in the Republic for the degree of baccalaureus legum and has satisfied all the requirements for the said degree; (f) Any person who: (i) at the commencement of the Act was registered as a student at any university or university college in the Republic for a degree in any faculty and was engaged in a course of study for such degree the successful completion of which would in accordance with the regulations of such university or university college then in force, entitle him to be exempted from a portion of the examination for the degree of baccalaureus legum; and (ii) has satisfied all the requirements for the said degree and the said degree of baccalaureus legum.16 It should be noted that the mere satisfaction of all requirements for the required degree is adequate for admission as an advocate. The degree need not necessarily have been conferred. The old cases dealing with this aspect are therefore no longer relevant. 1 Admission of Advocates Act 74 of 1964s 3(1)(b). Examinations are nothing new. The Emperor Leo required them for admission to the council of advocates: C 2 7 11. Also in Merula's time a prospective advocate had to be "gesensureerd ende ondersogt": Merula Manier van Procederen 4 17 2 1. On the pre­Union practice and qualifications of advocates, see Hahlo & Kahn Union of SA: Development of its Laws and Constitution 100­102 218­219 222 124­126 234 240 245 248. 2 S 3(2)(a).The four year LLB was introduced in 1997 by the Qualification of Legal Practitioners Amendment Act 78 of 1997. 3 114 of 1993. 4 Admission of Advocates Act 74 of 1964s 3(2)(b). 5 Admission of Advocates Act 19 of 1921. 6 Admission of Advocates Act 74 of 1964s 3(2)(b). 7 Lister v Incorporated Law Society of Natal 1969 1 SA 431 (N) 435. 8 In s 3(2)(b). See Jasat v Incorporated Law Society, Natal 1969 1 SA 437 (N); 1970 1 SA 221 (A). 9 Jasat v Incorporated Law Society, Natal 1970 1 SA 221 (A) 227. 10 S 3(2)(c). See Nxumalo v Northern Cape Society of Advocates 2001 3 All SA 498 (NC) in which the court held that for recognition of the validity of a foreign qualification it is required that a South African university's law faculty must certify that the syllabus and standard of instruction at the relevant foreign university is equal or superior to that of South African universities. 11 Promulgated in GN 588, 29 April 1960 amended by GN 1310, 29 December 1961 and further amended by GN 656 on 27 April 1962. These provisions were applicable until 21 December 1974 in terms of s 13(1) of the 1964 Act. 12 The 1962 notice prescribed a curriculum of five papers of three hours each in the two subjects; Ex parte Roeleveld 1971 1 SA 905 (N) 908. See Nxumalo v Northern Cape Society of Advocates supra. 13 74 of 1964. 14 Ex parte Roeleveld supra 909. After 1974 the examining body was disbanded. The examinations referred to above can therefore no longer be written. The intention to recognise only South African law degrees has been departed from since the inception of the Act by later amendments. 15 Maharaj v Incorporated Law Society, Natal 1973 3 SA 270 (N) 273G. 16 Ex parte Marsh 1971 3 SA 853 (N) 857A. On the effect of the repeal of r 6 framed under the Admission of Advocates Act 19 of 1921 published in Reg Gaz 20, 29 April 1960 GN 1310, 29 December 1961, in the light of the provisions of s 13(1) of the Admission of Advocates Act 74 of 1964, see Ex parte Miles 1973 2 SA 691 (T). See Nxumalo v Northern Cape Society of Advocates supra.

118 Citizenship and residence In order to be admitted as an advocate, the applicant must be a South African citizen or has been lawfully admitted to the Republic as a permanent resident in and is ordinarily resident in the Republic.1 Citizenship can be by birth or naturalisation.2 In terms of the Admission of Advocates Act3 cessation of South African citizenship may lead to disbarment. Persons who qualify on the basis of lawful residence are obliged4 to obtain naturalisation within six years from the date of admission to the Republic for permanent residence or within such further period as the court either before or after the expiration of the period of six years may for good cause allow. Failure to so do could lead to disbarment.5 The words "permanent residence in the Republic" would refer to the Republic as existing at date of application and not that territory within the boundaries of the Republic as it was in 1964 at the time of passing the Act. Any other interpretation would render the provisions of the Act 6 nugatory. 1 Admission of Advocates Act 74 of 1964s 3(1)(c). 2 See further par 131 post. 3 S 7(1)(a)(i). 4 S 7(1)(a)(ii). 5 Lawful admission for permanent residence was in terms of the Aliens Control Act 96 of 1991 and now is in terms of the Immigration Act 13 of 2002s 25. 6 Admission of Advocates Act 74 of 1964, ie more particularly s 5.

119 Not an attorney An applicant who has at any time been admitted to practise as an attorney in any court of the Republic or elsewhere has to prove that his or her name has been removed from the roll of attorneys on his or her own application.1 An attorney whose name was removed from the roll for dishonourable conduct is disqualified from admission as an advocate. Prior to the General Law Amendment Act2 there was the further requirement that a period of six months should expire between the date of such removal from the roll of attorneys and admission as an advocate. An exception is made to the rule3 against dual practice in the case of persons referred to in section 1 of the Natal Advocates and Attorneys Preservation of Rights Act4 who apply to the Natal Provincial Division or the Durban and Coast Local Division of the High Court to be admitted to practise as advocates. This Act provides that any person who was, on 29 June 1932 entitled to practise both as an advocate and as an attorney in the Natal Provincial Division or who became entitled so to practise at any subsequent date not later than 30 June 1937, will not be debarred by any rule of court from practising both as an advocate and as an attorney in any court in which he or she was entitled to practise on that date. As appears from the date, the dual practitioners have probably disappeared from the scene. It is further provided that the prohibition against dual practice does not apply to any person employed in the office of the state attorney or in any branch of it established under the State Attorney Act.5 This would then mean that the employees of the state attorney who are enrolled as attorneys could without having their names removed from the roll apply for their admission as advocates.6 This would lead to another form of dual practice and is not utilised in practice. It is submitted that despite the use of the word "shall" in section 3(1) of the Admission of Advocates Act the court would probably refuse to allow an employee of the state attorney to be admitted as an advocate without removing his or her name from the roll of attorneys on the ground that he or she is not a proper person to admit in view of the practice of all provinces already set out and in view of the intention of the legislator to phase out dual practice in KwaZulu­Natal.7 In what was the old Transvaal it is regarded as undesirable that an applicant should apply on the same papers for removal of his or her name from the roll of advocates and his admission as at attorney.8 In the Eastern Cape division the converse is, however, acceptable.9 The Attorneys Act10 provides that an advocate while enrolled as such is disqualified from entering into articles of clerkship.11 1 Admission of Advocates Act 74 of 1964s 3(1)(d). "Attorney" is a practitioner practising as attorney under a divided bar system, not a United States lawyer: In re Rome 1991 3 SA 291 (A) 306. 2 29 of 1974. On the reasons for this quarantine period see In re Rome supra. 3 In terms of s 3(3)(a) of the Admission of Advocates Act 74 of 1964. 4 27 of 1939. 5 56 of 1957. 6 Admission of Advocates Act 74 of 1964s 3(3)(b). 7 For the history of this section, see par 129 post. 8 Ex parte Marais 1973 2 SA 801 (T) 802C. 9 Ex parte Bernstein 1979 3 SA 815 (E). 10 53 of 1979. 11 Ex parte Ndabangaye 2004 1 All SA 229 (C); 2004 3 SA 415 (C).

ROLL OF ADVOCATES

120 Roll The Admission of Advocates Act1 provides that any person who is admitted and authorised to practise and to be enrolled as an advocate in terms of section 3(1) must be enrolled as an advocate on the roll of advocates.2 In terms of the Act3 the Director­General: Justice must keep a register, to be known as the roll of advocates, in which he or she must cause to be recorded: (a) the names of all persons deemed in terms of section 4 to have been admitted and authorised to practise and to be enrolled as advocates and particulars of the orders of court by which they were admitted to practise as advocates; (b) the name of any person admitted and authorised to practise and to be enrolled as an advocate in terms of any provision of the Act, and particulars of the order of court by which he or she has been so admitted and authorised; (c) particulars of any order of court by which any such person has been suspended from practice as an advocate, whether such order was made before or after the commencement of the Act, or by which the name of any such person has been ordered to be struck off the roll of advocates; (d) such other particulars as the Minister of Justice may direct. The names entered on the roll of advocates are those of persons admitted in terms of section 3(1), of existing advocates in terms of section 4(1) and of foreign advocates in terms of section 5(1).4 The registrar of the division which makes an order admitting and authorising any person to practise and to be enrolled as an advocate or ordering under the Act or any other law that the name of any person be struck off the roll of advocates or an order suspending under the Act or any other law any person from practice as an advocate must, immediately after the making of such order, forward a certified copy of it to the director­general.5 The Act prohibits practice as an advocate by persons whose names have been removed from the roll of advocates or who have been suspended from practice.6 Any document purporting to have been issued by the director­general which certifies that any person has been admitted to practise as an advocate or that any person has been suspended from practice as an advocate or that the name of any person has been removed from the roll of advocates is, on its mere production, prima facie proof of the facts stated therein.7 The roll of advocates existed in Roman times and the number of advocates that could be admitted was strictly limited.8 Although there existed a roll of advocates for several courts in Holland, in Roman­Dutch times the number of advocates was no longer limited.9 1 74 of 1964. 2 S 3(4). 3 S 8. 4 See ss 3(4) 4(2) 5(2). 5 S 8(2). 6 S 9(1). The Reinstatement of Enrolment of Certain Deceased Legal Practitioners Act 32 of 2002 provides for the reinstatement of the enrolment of certain deceased legal practitioners who were struck off the roll of advocates or attorneys as a result of their opposition to the previous political dispensation of apartheid or their assistance to persons who were opposed to the apartheid dispensation. 7 S 8(3). 8 C 1 51 13, 2 7 13, 2 8 5, 2 8 7, 2 7 17, 2 7 13, 2 7 10, 2 7 11. 9 Van Leeuwen RHR 5 4 1; Merula Manier van Procederen 4 17 3; Van Leeuwen Cens For 2 1 7 4.

121 Existing advocates Any person whose name appeared on the roll of advocates of any division on 18 February 1966, whether or not the admission or enrolment of such person as an advocate had been or was subject to any conditions, is deemed to have been unconditionally admitted to practise and authorised to be enrolled as an advocate in terms of section 3(1) of the Admission of Advocates Act,1 subject to the terms of any order of court by which such person has been suspended from practice as an advocate.2 Such persons are entitled to be enrolled on the roll kept in terms of section 8. As the admission and enrolment is deemed to be in terms of section 3(1), the provisions of section 7(1)(a) apply and loss of South African citizenship or failure of a non­citizen to obtain naturalisation would lead to disbarment. Foreign advocates Notwithstanding anything to the contrary contained in the Act, but subject to the provisions of any other law, any division may admit to practice and authorise to be enrolled as an advocate, any person who upon application made by him or her satisfies the court that: (a) he or she has been admitted as an advocate of the Supreme or High Court of any country or territory outside the Republic which the Minister of Justice has designated by notice in the Government Gazette (in the Act referred to as a designated country or territory); (b) he or she resides and practises as an advocate in the designated country or territory in which he or she has been so admitted; (c) he or she is a fit and proper person to be so admitted; (d) no proceedings are pending or contemplated to have him or her suspended from practice or struck off the roll of advocates of the said Supreme or High Court.3 In view of the use of the words "notwithstanding anything to the contrary" it is conceivable that by this method of reciprocity a person totally unqualified or unqualified as far as South African law or the official languages are concerned, could be admitted. It is, however, submitted that in view of the court's discretion upon admission, it is unlikely that this will happen.4 An applicant who relies on this section must satisfy the court that he or she resides and practises as an advocate in the designated country or territory.5 Any person who is admitted and authorised to practise and to be enrolled as an advocate in terms of this section of the Act, must be enrolled as an advocate on the roll of advocates.6 Any notice published in the Government Gazette, by which any country or territory has been designated for the purpose of the admission of foreign practitioners, may at any time be withdrawn by the minister by subsequent notice in the Government Gazette and thereupon any country or territory referred to in such first mentioned notice will cease to be a designated country or territory.7 The effect of a cessation of residence or practice of an advocate in the designated country or territory, or of the withdrawal of the notice designating such country or territory is that it may lead to disbarment.8 Whereas in section 3(1)(c) the requirement for a resident of South Africa upon admission is that he or she is "ordinarily resident" in the Republic, under section 5 the foreign advocate is merely required to "reside" in the designated country or territory. It is submitted that the legislator probably intended permanent residence and not merely temporary residence to be the qualification.9 It is submitted that upon applying the criterion that the foreign advocate should be a fit and proper person to be admitted, the same test would be applied as for a South African citizen or resident of the Republic, but that the court will in addition scrutinise the qualifications of the foreign advocate. The Act was surely not intended to lower standards of advocacy in the Republic.10 Advocates entitled to practise throughout the Republic Any person who has been or is deemed to have been admitted to practise as an advocate in terms of any provision of the Act will be entitled to practise as an advocate throughout the Republic unless his or her name has been ordered to be struck off the roll of advocates or unless he or she is subject to an order suspending him or her from practise as an advocate.11 In terms of this section, the advocate is prevented from practising throughout the Republic from the date of the order that his or her name be struck off the roll. On the other hand section 7(4) determines that any person whose name has been ordered under the Act or any other law to be struck off the roll of advocates will, while the name remains removed from the said roll, not be entitled to practise as an advocate. The applicable date is therefore the date of removal from the roll. In practice this discrepancy will cause no difficulties. The section authorising advocates to practise throughout the Republic was first introduced by the Admission of Advocates Amendment Act12 which still required separate enrolment in each division where such advocate wished to practise. A formal application to the court for admission was not necessary, merely a written request to the registrar of such division accompanied by a certificate from the registrar of the court in which the applicant practised. The requirement of separate enrolment fell away in 1964. 1 74 of 1964. 2 S 4(1). 3 S 5(1). By Government Gazette 6815 GN R91, 18 January 1980 the Republic of Transkei was so designated. The following countries have been designated: The Republic of Zimbabwe GNs 375 and 376, 12 March 2003. The Federal Republic of GN 378, 13 March 2003. The Kingdom of Lesotho GN R 1358, 19 November 2004. 4 But see Ex parte Cassim 1990 3 SA 845 (B). For the meaning of "subject to the provisions of any other law, see notes on s 3(1) in par 116 ante. "May admit" allows the court a wide discretion. Contrast the word "may" in s 5(1) with the word "shall" in s 3(1). For the meaning of "upon application by him", as to form and contents, see under ss 2(2) 3(1) in par 116 ante. For the meaning of "satisfies" see "requisites for admission" in par 116 ante. The court will have to be satisfied upon a preponderance of proof. 5 Lister v Incorporated Law Society, Natal 1969 1 SA 431 (N) 440. 6 S 5(2). 7 S 5(3). 8 S 7(1)(c). 9 On the meaning of the word "reside", see Claasen Dictionary 4. 10 See eg Ex parte Roeleveld 1971 1 SA 905 (N) 909. 11 S 6. 12 39 of 1946 s 2.

122 Admission to the bar Admission to the bar is not to be equated which admission as an advocate in terms of the Admission of Advocates Act.1 The latter is the enrolment as advocate with the registrar upon application to court. This entitles the advocate to practise but not to membership of the bar, being the society of advocates of that division of the High Court where he or she intends to practise. This membership is only attained after a period of pupillage, satisfactory attendance at a practical course in advocacy and the passing of a practical examination.2 As a general rule pupillage lasts for a year3 under the guidance and tuition of a mentor who is a junior member of the bar4 and who has to certify ( together with the pupil co­ordinator) at the end of the period that the pupil has done the prescribed training.5 Each Bar Council sets a limit to its numbers for pupillage based on its own capacity.6 Subject to minor exceptions, persons who are not admitted advocates or who are still on the roll of attorneys will not be admitted to pupillage.7 The period of pupillage is dispensed with in the case of practising members of other bars 8 and may be shortened by the bar council concerned but it may not grant exemption from the examination or attendance of the course in advocacy.9 During his or her pupillage the pupil may with the mentor's consent appear on brief and for remuneration in prescribed matters and subject to conditions.10 A pupil is entitled to be gainfully employed otherwise than as an advocate provided this does not adversely affect the reputation of the bar or prejudice the interest of clients.11 Such work must be undertaken outside of ordinary office hours and not interfere with any part of the lectures and training.12 Full disclosure must be made to the mentor of such work.13 The practical examination is set by the National Bar Examination Board and the practical course in advocacy training is conducted under the supervision of the National Advocacy Training Committee.6 1 74 of 1964; see pars 115­119 ante. 2 Bar rule 8.8.1. 3 Bar rule 8.1. 4 Bar rule 8.5. It is the duty of every junior member of the Bar to accept appointment as a mentor. 5 Bar rule 8.8.1.3. 6 Bar rule 8.1.5. 7 Bar rule 8.1.9. 8 Bar rule 8.1.9. 9 Bar rule 8.2.3. 10 Bar rule 8.6. 11 Bar rule 4.15 read with 8.7.1.1. 12 Bar rule 8.7.1. 13 Bar rule 8.7.2. 14 Bar rule 8.8 On the composition and functions of the National Bar Examination Board see 2003 Advocate 7; on Pupillage see (2002) 12 Advocate 6 and on Advocacy Skills Training see (1996) 5 Consultus 2.

DISCIPLINE, REMOVAL AND SUSPENSION

123 Removal and suspension All advocates are answerable to the court for all matters concerning their profession and office.1 The Admission of Advocates Act2 provides that subject to the provisions of any other law,3 a court of any division may, upon application, suspend a person from practice as an advocate or order that the name of a person be struck off the roll of advocates in certain instances. It should be noted that this power is not merely limited to the court of the division where the advocate practises or resides or was admitted, but the ordinary rules of jurisdiction would apply. Furthermore the court has a discretion and this discretion is vested in the provincial division which hears the application for suspension or striking­off. The discretion4 as to the action to be taken against an advocate rests in the first instance with the court of the division concerned.5 It is the function of the court of a particular division of the High Court to determine what is or is not improper conduct for an advocate. In doing so it will take cognisance of the rules of conduct laid down by the society of advocates of that division. The court is empowered to prohibit conduct which, though not in itself immoral or fraudulent may in its opinion be inconsistent with the proper conduct of a legal practitioner and calculated, if allowed, to lead to abuses in the future.6 It is therefore possible, though unlikely, that conduct regarded as improper in one division might not be frowned upon in another division. The appeal court's right to interfere on appeal with the order of a court of a division suspending or striking­off an advocate is therefore limited. It will only interfere if the court a quo has exercised its discretion arbitrarily or acted upon a wrong principle, or did not apply with an open mind an unbiased judgment, or if there are no good reasons for the court's decision.7 In a case against an advocate for his or her suspension or the removal of his or her name from the roll,8 the allegations have to be proved on a balance of probabilities. This test does not mean that it will be lightly accepted that an advocate has misconducted himself or herself. Regard will be had to the improbability of the fact that an advocate will be guilty of conduct contrary to the rules governing the conduct of members of the profession.9 The application for suspension or for the striking­off of the name of any person from the roll of advocates may be brought by the General Council of the Bar of South Africa or by the bar council or the society of advocates for the division which made the order for his or her admission to practise as an advocate or where such person usually practises as an advocate or is ordinarily resident.10 Any person having chambers in any place will be deemed for these purposes to be a person usually practising in that place.11 Even before the statutory recognition of the locus standi of the General Council of the Bar of South Africa and the bar councils or the society of advocates of the various divisions,12 the courts had recognised their locus standi to apply for the suspension or debarment of advocates.13 The fact that the respondent is not a member of the society of advocates is irrelevant.14 In addition the state attorney has locus standi to apply in terms of the Act.15 There is also a precedent for this in the reported cases.16 The bar council has a duty as disciplinary body to act in the public interest and bring its application for removal or suspension without undue delay. It may not enter into an agreement with the guilty advocate that no application will be made provided he or she terminates his practice. When taking the decision to act against a member a bar council is expected to act responsibly and with reference to the interests of its member with compassion and caution.17 The application is not by way of trial, but by motion proceedings and should the facts be disputed, the matter will be referred to evidence.18 The proceedings, though clothed in the form of motion proceedings, are in fact a disciplinary inquiry. They are not ordinary civil proceedings, but are sui generis in nature: they are proceedings of a disciplinary nature, of the court itself, not those of the parties; the court exercises its inherent right to control and discipline the practitioners who practise within its jurisdiction. The applicant bar council acts pursuant to its duty as custos morum of the profession, in the interests of the court, the profession and the public at large. It follows that the court may be actively involved in ascertaining the truth and that it is expected from the practitioner to assist the court in this respect.19 The proceedings are not subject to all the strict rules of the adversarial process and evidence which would have been inadmissible in "civil proceedings" may be considered in disciplinary proceedings against a practitioner. 20 Conduct revolving around extra professional involvement in business may shed light on the character and integrity of a respondent.21 The court will first decide whether the alleged offending conduct has been established on a preponderance of probability and, if so, whether the offender is a fit and proper person to practice as an advocate. This is an objective finding of fact. Once there is a finding that the offender is not a fit and proper person to practise, he or she may, in the court's discretion, either be suspended or struck off the roll.22 While proof of a conviction is prima facie evidence of unfitness in a misconduct inquiry, if sufficiently serious, the findings of the bar council are not.23 In the court's discretion suspension will be for a limited period, Circumstances leading to suspension or disbarment are the following: (a) termination of South African citizenship in the case of an advocate admitted in terms of section 3(1);24 (b) in the case of a non­citizen admitted as an advocate in terms of section 3(1) but resident in South Africa, failure to obtain naturalisation within six years from the date upon which he or she was admitted to the Republic for permanent residence or such further period as the court may allow;25 (c) a foreign advocate admitted in terms of section 5 who has ceased to reside or to practise as an advocate in the designated country or territory in which he or she resided and practised at the time of admission, or the cessation of that country or territory to be a designated country or territory.26 It should be noted that cessation of practice (in the designated country or territory) is only a ground for disbarment in respect of foreigners. In the case of South African citizens or persons with permanent residence in South Africa who apply in terms of section 3(1) of the Act, an intention to practise is not even required for admission.27 1 Van Leeuwen RHR 5 11 4; Society of Advocates of SA (Witwatersrand Division) v Edeling 1998 2 SA 852 (W) 860; General Council of the Bar of SA v Van der Spuy 1999 1 SA 577 (T). 2 Admission of Advocates Act 74 of 1964s 7. 3 No other laws prevent the court from exercising this function. 4 In terms of s 7(1); see the use of the word "may". 5 Olivier v Die Kaapse Balieraad 1972 3 SA 485 (A) 495C. 6 Olivier v Die Kaapse Balieraad supra 495F; Beyers v Pretoria Balieraad 1966 2 SA 593 (A) 605G; General Council of the Bar of SA v Van der Spuy supra; Society of Advocates of Natal v De Freitas (Natal Law Society intervening) 1997 4 SA 1134 (N) 1165D 1171B, 1997 4 All SA 452 (N); On appeal: De Freitas v Society of Advocates of Natal 2001 6 BCLR 531 (A); 2001 3 SA 750 (SCA) 763; Kekana v Society of Advocates of SA 1998 4 SA 649 (SCA) 654. 7 Olivier v Die Kaapse Balieraad supra 495C 497; Beyers v Pretoria Balieraad supra 605G; Fine v Society of Advocates of SA (Witwatersrand Division) 1983 4 SA 488 (A) 494; Kekana v Society of Advocates of SA supra 654; Hayes v The Bar Council 1981 3 SA 1070 (ZAD). 8 Under s 7. 9 Olivier v Die Kaapse Balieraad supra 496F. 10 S 7(2); Algemene Balieraad van SA v Burger 1993 4 SA 510 (T). 11 S 7(3). 12 By s 7(2). 13 Johannesburg Bar Council v Stein 1946 TPD 115; Society of Advocates of Natal v Knox 1954 2 SA 246 (N). 14 Society of Advocates of Natal v Knox supra 248F; cf Beyers v Pretoria Balieraad supra; Society of Advocates of Natal v (Natal Law Society intervening) supra; De Freitas v Society of Advocates of Natal supra. General Council of the Bar of SA v Van der Spuy supra. 15 S 7(2). 16 See State Attorney v L (1895) 2 OR 214. In Director of public prosecutions v Tatham 1916 TPD 160 the director of public prosecutions initiated the proceedings. 17 Vereniging van Advokate van SA (Witwatersrand Afdeling) v Theunissen 1979 2 SA 218 (T) 222; Society of Advocates of SA (Witwatersrand Division) v Edeling supra. 18 Olivier v Die Kaapse Balieraad supra 485A. See High Court Rules r 6. 19 Society of Advocates of SA (Witwatersrand Division) v Edeling supra 861; Prokureursorde van Tvl v Kleynhans 1994 4 BCLR 48 (T); 1995 1 SA 839 (T) 853 FG; General Council of the Bar of SA v Van der Spuy supra. 20 Society of Advocates of SA (Witwatersrand Division) v Edeling supra 859; GCB of SA v Matthys 2002 5 SA 1 (E) 5. 21 Society of Advocates, Natal v Z 1988 3 SA 443 (N). 22 Kekana v Society of Advocates of SA 1998 3 All SA 577 (A); 1998 4 SA 649 (SCA) 654; GCB of SA v Matthys supra 5. 23 Society of Advocates of SA (Witwatersrand Division) v Rottanburg 1984 4 SA 35 (T) 38; Prokureursorde van Tvl v Kleynhans supra 853A. 24 S 7(1)(a)(i). 25 S 7(1)(a)(ii). 26 S 7(1)(c). 27 S 3(1); see Ex parte Honore 1951 3 SA 428 (C); Ex parte Fincham 1949 4 SA 236 (C).

124 Not a fit and proper person The court will suspend or disbar an advocate if satisfied that he or she is not a fit and proper person to continue to practise as an advocate.1 The test is whether the court is convinced upon a preponderance of probabilities.2 Although the words "continue to practise" are used it is submitted that not only actively practising advocates, but also those not practising but whose names are on the roll are subject to this disciplinary action.3 Generally an advocate, whose calling is "one which is praiseworthy and necessary to human life",4 should "always cling to the famous principle that the true jurist is an honest man".5 An advocate may not lack that sense of responsibility, honesty and integrity which is characteristic of an advocate. Such lack may be a ground for disbarment.6 Courts are not unanimous on the question of whether or not, in an application for the suspension or disbarment of an advocate, the court is limited to a consideration of the specific charges brought against the advocate or whether the conduct of the respondent in relation to the application made against him or her, and the facts emerging from the explanation to the court, may be taken into account in determining whether the advocate is a fit and proper person to continue to practise as an advocate.7 It is submitted that in determining whether an advocate is a fit and proper person to continue to practise, all relevant facts proved should be taken into account whether they form the subject of specific charges against the respondent or are contained in the respondent's answer. An advocate who lies under oath in an application to strike his or her name off the roll cannot complain if such perjury is held against him or her when the question arises whether he or she is a fit and proper person to continue practising.8 This is subject to the basic rule that the procedure should not embarrass the respondent by taking him or her unawares. He or she should be afforded adequate opportunity to explain detrimental facts and to prove extenuating circumstances. In proper cases the court might require that the "new" facts form the subject of a specific charge in a separate application.9 A breach of bar rules may also be proof of a breach of the high standards set for the profession in the requirements of honesty and integrity and may be a ground for suspension or disbarment. This may therefore also lead to disciplinary action. Disregard of the rules of the bar, for example those providing for the sending of accounts (fee lists) and the due collection of fees, is not merely an internal matter of the bar to be dealt with domestically. The systematic breaking of the bar rules to which an advocate subscribes upon becoming a member of the bar, may indicate a lack of that sense of responsibility and integrity, characteristic of an advocate. This may be a ground for disbarment. Persistent violation of and a contemptuous attitude towards the bar rules are taken into account as aggravating circumstances in determining whether an advocate should be suspended or disbarred.10 This may even apply in certain circumstances to non­members of the bar.11 The fact that an advocate has been discharged by the court on a criminal charge is not conclusive and does not debar disciplinary action against him or her on the same charge.12 "It is not necessary to expatiate on the high standard of integrity and the necessity for avoidance, not only of criminal conduct, but of misconduct or unprofessional conduct required of an advocate."13 1 Admission of Advocates Act 74 of 1964s 7(1)(d); see Van der Berg v General Council of the Bar of SA 2007 2 All SA 499 (SCA). 2 Olivier v Die Kaapse Balieraad 1972 3 SA 485 (A). 3 On who is or is not a fit and proper person to continue to practise as an advocate, see also the remarks under "requisites for admission" in par 116 ante. 4 C 2 8 4. 5 Van der Linden Supp ad Voet 3 1 9. 6 Olivier v Die Kaapse Balieraad supra 497D 498; Vereniging van Advokate van SA (Witwatersrand Afdeling) v Theunissen 1979 2 SA 218 (T); Rhodesian Bar Association v Maruza 1976 3 SA 334 (R); GCB of SA v Matthys 2002 5 SA 1 (E); Society of Advocates of Natal & the Natal Law Society v Merret 1997 2 All SA 273 (N); 1997 4 SA 374 (N). 7 Olivier v Die Kaapse Balieraad supra 498F­500H. Compare Society of Advocates of SA (Witwatersrand Division) v Fischer 1966 1 SA 133 (T) 138C; Pretoria Balieraad v Beyers 1966 1 SA 112 (T); Beyers v Pretoria Balieraad 1966 2 SA 593 (A) 603E­F with Incorporated Law Society v Dagg 1903 TS 583; Incorporated Law Society v Tottenham & Longinotto 1904 TS 304; Incorporated Law Society v AB van Os 1906 TS 733; Natal Incorporated Law Society v De Beer 1950 2 SA 531 (N); Incorporated Law Society of the OFS v H 1953 2 SA 263 (O); Incorporated Law Society v De Jong 1909 TS 496; Kekana v Society of Advocates of SA 1998 3 All SA 577 (A); 1998 4 SA 649 (SCA) 654. 8 Kekana v Society of Advocates of SA supra 655; GCB of SA v Matthys supra 22. 9 Compare Olivier v Die Kaapse Balieraad supra 500H­501A; Prokureursorde van Tvl v Kleynhans 1994 4 BCLR 48 (T); 1995 1 SA 839 (T). 10 Olivier v Die Kaapse Balieraad supra 497D­498D; Society of Advocates of SA (Witwatersrand Division) v Cigler 1976 4 SA 350 (T) 354 357. 11 Pretoria Balieraad v Beyers supra; Beyers v Pretoria Balieraad supra. 12 Johannesburg Bar Council v Stein 1946 TPD 115 117. 13 Johannesburg Bar Council v Stein supra 118.

125 Who initiates proceedings A duty is vested in the court to enquire or to cause enquiry to be made into the conduct of advocates who are officers of the court and entitled to practise before it, when facts are brought to its notice rendering, in its opinion an enquiry with the possibility of consequent disciplinary action necessary. As the court itself possesses no machinery for the purpose of conducting the preliminary investigation necessary to ascertain whether or not there is substance in the complaints or information adduced to it and whether sufficient facts have been established to render it necessary that evidence be fully placed before the court in order to determine the propriety or otherwise of the conduct of the advocate in question and the necessity for disciplinary action, the court has in the past requested the director of public prosecutions to initiate proceedings.1 The state attorney has also been allowed to initiate proceedings on own initiative without request.2 It is obvious, however, that the society of advocates of the division concerned is most intimately concerned with the practice of advocates, members or non­members, within its jurisdiction and it is therefore the proper body to initiate proceedings even though it possesses only limited disciplinary powers over its own members and no powers at all in respect of non­members. This has now been statutorily recognised. The Admission of Advocates Act3 provides that the General Council of the Bar of South Africa or the bar council of the society of advocates of the division where the advocate was admitted to practice or usually practises or is ordinarily resident may apply for the suspension or striking off on all grounds stated in the Act and the state attorney may do so in the case of foreign advocates who have ceased to reside or practise in their designated country.4 1 Attorney­General v Tatham 1916 TPD 160; Johannesburg Bar Council v Stein 1946 TPD 115 119. 2 State Attorney v L (1895) 2 OR 214. 3 74 of 1964, s 7(2). 4 Johannesburg Bar Council v Stein supra 119; s 7(2).

126 Removal from the roll on own application An advocate may be suspended from practice or his or her name may be removed from the roll on his or her own application.1 There is no reason for a suspension of an advocate upon his or her own application as there is no obligation to practise even though his or her name is enrolled. It is necessary to give notice to the bar council or society of advocates concerned of an application for removal. A court will not remove an advocate's name from the roll at his or her own request while an investigation into his or her conduct and possible disciplinary action by the court is pending.2 As in the case of an application for admission the application for removal will be ex parte in the form laid down by the rules of court.3 1 Admission of Advocates Act 74 of 1964s 7(1)(e). 2 See Ex parte Behrmann 1958 3 SA 660 (N) 663G­H; Ex parte Marais 1973 2 SA 801 (T) 802E. 3 See High Court Rules r 6.

127 Prohibition of practice Any person who has been suspended from practice as an advocate under the Admission of Advocates Act1 or any other law whether before or after the commencement of the Act, will for the duration of such suspension, and any person whose name has been ordered under the Act or any other law to be struck off the roll of advocates, will, while his name remains removed from the said roll, not be entitled to practise as an advocate.2 The practice of an advocate is not defined in the Act and except in general terms it is difficult to define. It may also differ in content at various times.3 Upon receipt of the order of court of any division by which the name of any person has been ordered under the Act or any other law to be struck off the roll of advocates, the Director­General: Justice must cause the name of such person to be removed from the said roll.4 1 74 of 1964. 2 S 7(4). 3 Cf Director of public prosecutions v Tatham 1916 TPD 160 and Pretoria Balieraad v Beyers 1966 1 SA 112 (T) and Beyers v Pretoria Balieraad 1966 2 SA 593 (A); Ex parte Masterson 1974 4 SA 321 (RA). 4 S 7(5). 128 Offences No person who has not been or is not deemed to have been admitted to practise as an advocate in terms of any provision of the Admission of Advocates Act,1 or whose name has been removed from the roll of advocates, or who is subject to any order suspending him or her from practice as an advocate, may in any manner directly or indirectly practise as an advocate or hold himself or herself out as, or pretend to be or make use of any name, title, addition, or description implying or tending to induce the belief that he or she is an advocate or is recognised by law as such.2 The practice of an advocate is not defined in the Act.3 The anomalous position arises that the intention of the Act is clearly to admit persons to practise, but that nothing prevents qualified persons who have no serious intention of practising from being admitted as advocates. The title of advocate, in popular language allotted only to those who in fact practise, can therefore be used those who have no intention of doing so. The fact that a person who is not entitled to practise as an advocate appears in a case as an advocate may vitiate the result.4 No person who has been or is deemed to have been admitted to practise as an advocate in terms of any provision of the Act, may make over to or share or divide with any person other than a person practising as an advocate any portion of professional fees, whether by way of partnership, commission, allowance or otherwise.5 This leaves open the sharing of fees between practising advocates and therefore also the possibility of partnerships between practising advocates. The internal rules of the bar, however, prevent the forming of partnerships.6 It also leaves open the way for devilling by a junior for a more senior advocate at a remuneration.7 Any person who contravenes any of the abovementioned prohibitions is guilty of an offence and liable on conviction to a fine not exceeding R2008 or imprisonment for a period not exceeding 12 months with or without the option of a fine, or to both such fine and imprisonment. Any advocate who contravenes the provisions as to the sharing of fees will in addition be guilty of unprofessional conduct and be liable to be suspended from practice or to be struck off the roll of advocates.9 These penalties are light compared with the penalties of confiscation of property and perpetual exile in Roman times for a non­catholic who practised surreptitiously as an advocate or anyone who practised without authority.10 1 74 of 1964. 2 S 9(1). 3 See in this respect par 127 ante. 4 S v Mkhise, S v Mosia, S v Jones, S v Le Roux 1988 2 SA 868 (A); but cf Voet Commentarius 3 1 2. 5 S 9(2). 6 Bar rule 4.16; but see Commissioner, Competition Commission v GCB of SA 2002 6 SA 606 (SCA). 7 Bar rule 4.26. 8 But cf Adjustment of Fines Act 101 of 1991s 1(2). 9 Admission of Advocates Act 74 of 1964s 9(3). 10 D 1 4 15; C 2 6 8.

THE DIVIDED BAR

129 Historical In Roman­Dutch times the lawyers were divided into attorneys and advocates. Attorneys were those who kept a record of the pleadings, acted in the prosecution of the case in all its stages and in everything assisted the advocate.1 In the superior courts no one could appear before a judge without the protection of an advocate and the assistance of an attorney.2 In small cases, however, either an advocate or an attorney alone could defend the case. Before inferior tribunals the attorneys alone conducted and defended cases except where in matters of great importance and for better security they engaged an advocate to assist them.3 A petition had to be signed by an advocate and attorney.4 Certain specified pleadings had to be signed by an advocate.5 The divided bar is therefore a legacy of the Roman­Dutch practice. The same practice grew up in Great Britain.6 In the Cape, Transvaal and Orange Free State prior to Union in 1910 the divided bar was also firmly entrenched.7 Prior to its amendment in 19748 the Admission of Advocates Act9 provided that an applicant should prove that for a continuous period of not less than six months immediately before the date of his or her application to be admitted as an advocate, the applicant had in no way been associated or connected with the practice of or acted directly or indirectly as an attorney, notary or conveyancer in the Republic or elsewhere. The Act10 contained a similar provision in respect of a clerk or assistant of any person practising as an attorney, notary or conveyancer. This rule originated in 1888 when the Supreme Court of the South African Republic held that it was undesirable that a practitioner should constantly be changing from an advocate to an attorney and vice versa. In order to prevent this, the court laid down that if anyone who was admitted as an advocate wished to be admitted as an attorney and to have his name removed from the roll of advocates, a period of at least two terms must elapse between the date of his admission as an advocate and that of his application for admission as an attorney. The same period must elapse if he wished to be readmitted as an advocate.11 This rule was followed in the Transvaal Colony12 and later in the Transvaal Provincial Division.13 The rule was later followed in the other divisions.14 It was later enshrined in the rules15 and became part of the applicable statute (however, only in respect of the admission of former attorneys as advocates).16 In Natal, however, dual practise was in force.17 In terms of the Supreme Court Act18 a duly qualified person could practise as an attorney and as an advocate at the same time. Such duly qualified person could even be admitted as an advocate and an attorney on one and the same application.19 Rule of Court 47 (Natal)20 had the effect of terminating as from a certain date the aforementioned dual practise. It preserved the rights of persons who had been actually admitted both as advocates and attorneys.21 The existing rights of dual practitioners were preserved by the Natal Advocates and Attorneys Preservation of Rights Act22 and again preserved by the Admission of Advocates Act of 1964.23 However, for practical purposes the dual practice of Natal has come to an end. Although initially a person could practise in the old South African Republic in a dual capacity as advocate and attorney, since the promulgation of Rule of Court 75 this was no longer the case. On 2 August 1887 chief justice Kotze stated that it was the settled practice of the court not to allow persons to practise in both capacities at the same time.24 In 1895 the Supreme Court of the South African Republic (ZAR) stated that a person admitted as an advocate who also practised and acted as an attorney and agent in a transaction was guilty of a breach of rule 75 and that this conduct merited the strong disapproval of the court.25 Attorney discharging functions of advocate Notwithstanding anything contained in the Act or in any other law, any court of any division may permit an attorney to discharge the functions of an advocate in any proceedings pending before it if there is no advocate available or willing to act.26 It should be noted that the attorney may be allowed to discharge the "functions of an advocate" and not to practise as an advocate. Neither can blanket authority be granted to an attorney, but only in a specific proceedings "pending before" the court. There should therefore be an existing pending matter. The possibility that there is no advocate willing to act is unlikely in view of the ethical rule which obliges advocates to take cases if available.27 These provisions became redundant with the passing in 1995 of the Right of Appearance in Courts Act28 in terms of which attorneys holding an LLB degree or its equivalent or having three years practical experience have the right to appear in the higher courts in the Republic (including the Supreme Court of Appeal and Constitutional Court). 1 Van Leeuwen RHR 5 4 2. 2 Van Leeuwen 5 4 2; Van der Linden Jud Pract 1 8 5. 3 Van Leeuwen 5 4 3; General Council of the Bar of SA v Van der Spuy 1999 1 SA 577 (T). 4 Van der Linden Supp ad Voet 3 1 1. 5 Merula Manier van Procederen 4 17 9. 6 See also Wessels History of the Roman­Dutch Law 191; 1988 SALJ 54 421. 7 Cf Hahlo and Kahn Union of SA: Development of its Laws and Constitution 200­202 218­219 222 224­ 226 235 240 245 248; In re Rome 1991 3 SA 291 (A) 306; General Council of the Bar of SA v Van der Spuy supra; Society of Advocates of Natal v De Freitas (Natal Law Society Intervening) 1997 4 All SA 452 (N); 1997 4 SA 1134 (N) gives an incisive historical overview of the dual nature of the profession. 8 General Law Amendment Act 29 of 1974 s 16(a). 9 Admission of Advocates Act 74 of 1964s 3(1)(d). 10 S 3(1)(e) (now repealed). 11 Ex parte Auret (1888) 2 SAR 228. 12 Ex parte Plowden­Wardlaw 1903 TS 35; Ex parte Beyers 1904 TS 567. 13 Ex parte Coaker 1921 TPD 382. 14 Ex parte Van Rensburg 1932 EDL 152; Ex parte De Jager 1925 OPD 13. 15 Ex parte Friedman 1939 CPD 174. 16 See also Ex parte Herbstein 1941 SWA 3. 17 See Hahlo and Kahn 224­226. 18 39 of 1896 (Natal) s 69. 19 In re AE Carlisle (1905) 26 NLR 147. 20 Published under GN 697/1932. 21 See Ex parte Stuart, Ex parte Geerdts 1936 AD 418; Ex parte Stuart & Geerdts 1936 NPD 57. 22 27 of 1939s 1. 23 74 of 1964s 13(2). 24 Ex parte CJ Brand (1887) 2 SAR 183. 25 State Attorney v L (1895) 2 OR 214. 26 S 10. 27 See par 132 post. 28 62 of 1995, with effect from 1 November 1995.

ACT AND RULES

130 Rules The power to make rules under the Supreme Court Act1 is deemed to include the power to make rules for giving effect to the provisions of the Admission of Advocates Act.2 Rule 3A of the High Court Rules was enacted to give effect to the Act. Repeal of laws and amendments The Act contains a Schedule of laws from 1858 to 1956 which are repealed by the Act. The rules made under section 2 of the Admission of Advocates Act of 19213 in force on 18 February 1966 remained in force until 31 December 1974.4 The right to dual practice as advocate and attorney in Natal is preserved.5 The Act came into operation on 18 February 1966. It was amended by the Admission of Advocates Amendment Acts of 19656 19777 19798 19849 198710 199111 199412 199513 and 1997 14 1 59 of 1959. 2 74 of 1964s 11. 3 19 of 1921. 4 See Lister v Incorporated Law Society, Natal 1969 1 SA 431 (N) 432H; Ex parte Roeleveld 1971 1 SA 905 (N); Ex parte Marsh 1971 3 SA 853 (N). 5 See Admisson of Advocates Act 74 of 1964s 13(2). 6 73 of 1965, which amended respectively ss 3 and 7 of the Act. 7 39 of 1977, with regard to the language requirements of applicants for admission in s 3(2) of the Act. 8 25 of 1979, with regard to the withdrawal of the appointment of persons as senior counsel. 9 60 of 1984, with regard to admission, suspension and removal. 10 17 of 1987, with regard to academic qualifications. 11 106 of 1991, with regard to academic qualifications. 12 55 of 1994, requirement of Latin abolished. 13 Admission of Legal Practitioners Amendment Act 33 of 1995, requirement of Afrikaans and English abolished. 14 Qualification of Legal Practitioners Amendment Act 78 of 1997, four year LLB introduced.

CONDUCT

131 Advocate's oath The High Court Rules1 provide that any person who is admitted to practise and authorised to be enrolled as an advocate must upon being so admitted and authorised take an oath or make an affirmation before the registrar in court, which must be subscribed by him or her, in the following form: "I, . . . do hereby swear/solemnly and sincerely affirm and declare, that I will truly and honestly demean myself in the practice of an advocate according to the best of my knowledge and ability, and further, that I will be faithful to the Republic of South Africa." It is clear that this oath has to be taken in court which in terms of the definition in rule 1 means a court constituted in terms of section 13 of the Supreme Court Act.2 This means the High Court of a provincial or local division. The reference to "upon being so admitted and authorized" and "before the registrar in court" indicates an intention on the part of the legislator that the oath should be taken simultaneously with the admission and in open court in the court where the applicant is admitted. It should be taken in the High Court and not in the magistrate's court.3 Only in exceptional circumstances will an applicant be allowed to take the oath elsewhere.4 In Roman times the oath had to be taken in individual cases according to a formula laid down.5 In Roman­Dutch times, however, the oath had to be taken upon admission and renewed annually in terms of certain formulae.6 This oath of an advocate contained inter alia an undertaking to honour the Stadhouder, President en de Raad, to serve faithfully his masters, not to undertake any cases known to him to be unjust, not to use delaying tactics or improper uytwegen, not to enter into a pactum de quota litis, to subject himself to the taxation of the court and in general to conduct himself as an honourable advocate. Apart from this oath, the oath of allegiance was taken as it was by all other residents of the provinces.7 In the Cape prior to the British occupation the Statuten van Indien which, according to a resolution of the governor and raaden of the Cape dated 12 February 1715, were applicable there, stipulated the form of the oath for advocates. It materially conforms to that in use in the Netherlands set out above. It contained an undertaking of faith of allegiance to the Staat der Verenigden Nederlanden, de Heeren Bewind hebberen der Oost Indeseise Compagnie, Den Heer Goewerneur Generaal ende Raaden van , mitsgaders deeze Stad.8 Since the British occupation in 1806 all persons admitted as advocates took an oath in a form practically the same as that set out in the Statuten van Indien, except that the oath of allegiance to the Staat der Verenigden Nederlanden was substituted by one to his majesty the king of Great Britain and Ireland. In 1828 the Supreme Court was created but neither in the charter of justice of 1826 nor that of 1832 was provision made for an oath of allegiance. The practice of taking such an oath was, however, continued. In 18589 a new oath of allegiance supremacy and adjuration was promulgated. A new simple form of oath came into force in 1868 and remained in force until South Africa became a Republic. By this oath the advocate would swear to be faithful and bear true allegiance to the monarch, his heirs and successors according to law.10 In the Orange Free State when it was an independent republic, the law required a legal practitioner desiring to be admitted there to take a professional oath (ampseed) and the oath of allegiance to the state.11 The Natal,12 the Transvaal13 and the Orange Free State14 rules provided for the oath of allegiance to be taken by an advocate.15 Two oaths are set out and prescribed in the Transvaal Proclamation of 1902. 16 By the first the applicant would swear, truly and honestly demean himself in the practice of an advocate according to the best of his or her knowledge and ability. The second is the oath of allegiance set out above. Although it is uncertain what the form of the oath was which was taken in the Cape prior to 1865,17 and although there is no statute, regulation, rule of court, or court notice indicating that the taking of the oath of allegiance was essential to admission as an advocate of the Cape court, as for more than 100 years it had been the practice of the court to require that an applicant for admission as an advocate should take the oath of allegiance, the court held18 that a usage had been established requiring that the oath of allegiance should be taken. In terms of the Schedules to the ordinances of the Transvaal and the Free State, two oaths were required, being the oath to properly demean themselves and the oath of allegiance. Prior to 1922 the former was not in use in the Cape. In 1922 the Transvaal and the Orange Free State forms were supplied to the office of the registrar of the Cape court with the result that since that date both oaths were taken by advocates admitted in that province. Thus without judicial pronouncement or legislative enactment in the Cape it has become the practice to take the oath truly and honestly to demean oneself as an advocate in addition to the oath of allegiance in use since 1868.19 These two oaths are still required upon admission as an advocate throughout the Republic, although they have been combined in one form.20 As in terms of the Admission of Advocates Act21 residents of the Republic who are not South African citizens may be admitted as advocates, the question arises whether they could take the oath of allegiance. The oath dealing with proper demeanour poses no problem. A stateless alien is not precluded from taking the oath of allegiance and can therefore be admitted as an advocate.22 The reason is that all resident aliens owe allegiance to the state in which they reside.23 A controversy exists in respect of aliens who have not become naturalised and are not stateless, but are resident within the Republic. The Cape court held24 that such aliens are not entitled to admission as advocates as they could not take the oath of allegiance to this country, already owing allegiance to another state. However, in the Orange Free State it was held that an unnaturalised alien can take an oath of allegiance and can therefore be admitted as an advocate. A foreigner residing in this country and so owing a temporary allegiance would by his oath of allegiance merely consecrate the duty of allegiance which he already owed.25 According to this case "[t]he oath of allegiance has no greater content in South Africa to­day than an undertaking fortified by moral and religious sanctions faithfully to obey the laws of the land."26 The cases set out above were all decided before the 1964 Act. In view of the fact that specific provision is made for the admission of advocates who are aliens but permanent residents of the Republic27 and advocates who reside and practise as such in a designated country or territory (and therefore not owing the allegiance of a resident to the Republic of South Africa), taken with the fact that the Act does not prescribe nor does it abolish the oath upon admission, thereby retaining the oath as set out in rule 3A(5), it is submitted that such persons should be required to take the present oath. To allow them to be admitted without taking the oath of allegiance and upon merely taking the oath pertaining to demeanour would be acting contrary to the provisions of the rule, which appear to be peremptory. 1 R 3A(5). 2 59 of 1959. 3 Ex parte Stormont (1905) 22 SC 241. 4 Ex parte Honore 1951 3 SA 428 (C); Ex parte Fincham 1949 4 SA 236 (C); Ex parte Nixon 1910 CTR 331; Ex parte Davies (1906) 23 SC 237; Ex parte Botha 1938 OPD 58; Ex parte Smit 1933 GWL 56; Ex parte Rossouw 1936 NPD 364; Ex parte Van der Merwe 1949 1 SA 709 (O). 5 C 3 1 14 4; Inst 4 16 1; Voet Commentarius 3 1 9. 6 Van Leeuwen RHR 5 4 1; Voet 3 1 9. 7 Merula Manier van Procederen 4 16 1; Van Leeuwens Cens For 2 1 7 7; Voet 3 1 9. (It should be noted that in the authorities mentioned above, the contents of the oath are not the same.) 8 Dichter v Cape Law Society 1935 CPD 58 60. 9 By the Imperial Parliament Act 1858 (21 & 22 Vict c 48 s 1). 10 Promissory Oaths Act 1868 (31 & 32 c 72 s 2); Dichter v Cape Law Society supra 62­63. 11 Ex parte W (1895) 12 CLJ 232 (O); Dichter v Cape Law Society supra 64. 12 Rules of Court order XXXII r 47. 13 Proc 14 of 1902 s 11. 14 Order IV 1902 s 13. 15 See also Dichter v Cape Law Society supra 66. 16 14 of 1902 Sch C. 17 See Ex parte Kriger 1945 CPD 252. 18 Ex parte Kriger supra 262. 19 Ex parte Kriger supra 264. 20 The old r 3bis(5) was renamed r 3A (5). 21 74 of 1964s 3(1)(c). 22 Ex parte Kriger supra; Ex parte Lowen 1938 TPD 504. 23 Ex parte Lowen supra 507. 24 Dichter v Cape Law Society supra; Ex parte Kriger supra. 25 Ex parte Schwietering 1948 3 SA 378 (O). 26 Ex parte Schwietering supra 383. See also Ex parte Nottingham 1978 3 SA 157 (B); Ex parte Bizos 1954 2 SA 396 (T). 27 S 3(1)(c).

132 Rules of conduct The conduct of advocates has to conform to certain rules. The most important principles were already applied in Roman­Dutch times and are of general application. The basic principles have been developed and extended by the societies of advocates in their rules of conduct and etiquette which are binding upon their members. The principles of general application as well as the bar rules will be dealt with hereunder.1 The General Council of the Bar proposes rules of professional conduct for the members of all the constituent bars federated to it, but each society is at liberty to adopt or reject any such rule. As individual bars are entitled to lay down their own rules of conduct and from time to time make rulings in respect of them it is to be expected that in certain minor respects there will be differences between the rules of conduct and etiquette of the various bars. The bar rules here set out are, however, of general application. The basic principles underlying them are sanctioned by tradition and long­standing practice and non­compliance with them can in the case of a member of a society be a ground for the removal of his or her name from the roll of advocates.2 With regard to his or her conduct outside the professional field, the duty of an advocate is no higher than that of an ordinary citizen.3 Should he or she have reasonable grounds for believing that another advocate has been guilty of unprofessional conduct, it is the duty of a member of the bar to report the matter to his or her own bar council (unless the information is privileged and the privilege is not waived).4 The rules of conduct set out hereunder can be related to the following principles: First, there is the requirement of loyalty to the client. This entails the advocate's duty of good faith and the obligation to further the client's cause to the best of his or her ability.5 Further there is the requirement of candour to the court which entails not only frankness and truthfulness, but absence of deceit in any form and due respect for the judge.6 Further there is the requirement of fairness to the adversary, namely the opposite party, his or her witnesses and counsel.7 Lastly there is the obligation to adhere strictly to the rules of the society of which the advocate is a member and to which he or she has subscribed.8 As stated by Van der Linden: "an advocate should always cling to the famous principle that the true jurist is an honest man . . . He ought not to misrepresent the civil law, nor ought he to use deceits and tricky devices so that what is really unjust, may seem to be just".9 The advocate "moet meesterlyk en de getroue lyk dienen zyn Meesters" (must excellently and dutifully serve his masters).10 Duty of an advocate Upon receipt of instructions the duty of the advocate is first to ascertain carefully the true facts, obtaining at the same time the proof of them. Secondly, as far as the law is concerned, he or she should determine whether there is a cause of action or defence.11 It is considered unbecoming and disgraceful for those who profess the knowledge of the law to be ignorant of the laws of the land.12 According to the best traditions of the bar an advocate should, while acting with all due courtesy to the tribunal before which he or she is appearing, fearlessly uphold the interests of the client without regard to any unpleasant consequences either to himself or to any other person.13 In acting fearlessly he or she should not act foolishly or irresponsibly.14 An advocate has the same privilege as the client of asserting and defending the client's rights and of protecting his or her liberty or life by the free and unfettered statement of every fact and the use of every argument and observation that can legitimately, according to the principles and practice of law, conduce to this end.15 In the conduct of the case the advocate may not use abuse, slander and vituperation.16 He or she, is however, protected when making a defamatory statement in the interests of the client, pertinent to the matter in issue, even though it be false, provided he or she has some reasonable cause for such conduct. There is no protection when the advocate goes out of his or her way to defame an individual and to allege or insinuate calumnious charges not justified by the occasion.17 When drawing pleadings counsel need not believe in the truth of the evidence that will be available to prove the allegations in the proceedings. It is enough that the advocate does not know the evidence to be false. An advocate will not be held liable for defamation if he or she sets out in a pleading allegations in the truth of which he or she has no belief, unless the advocate knows that he or she will not be able to support them by evidence at the trial.18 Counsel who has no belief in the truth of an assertion and knows he or she has no evidence to support it is not entitled to put it to a witness during cross­examination.19 But allegations made by a witness which are going to be disputed have to be challenged.20 Questions may not be couched as statements of fact to which others will depose when no evidence thereon is intended to be led.21 Cross examination may not be hectoring, rude, unreasonable, intimidating, insulting and harassing.22 Argument by counsel at the conclusion of the evidence stands on a somewhat different footing. Here counsel is putting forward submissions as to the weight of the evidence and the inferences to be drawn from it. Considerable latitude is allowed to counsel who thus presents the case and attempts to persuade the tribunal to his or her view. Animus iniuriandi is not to be attributed to him or her merely because the practitioner does not think his or her submissions well founded or because they are pitched too high for reasonable acceptance.23 No invectives are allowed24 and counsel is not allowed to abuse the other advocate.25 Neither should there be open or clandestine contumely of the adversary after the case.26 The advocate's duty to the court requires absolute honesty and integrity. Counsel may make no false statement or lying charges.27 "[I]t is of vital importance that when the Court seeks an assurance from an advocate that a certain set of facts exists the Court will be able to rely implicitly on any assurance that may be given. The same standard is required in relations between advocates and between advocates and attorneys. The proper administration of justice could not easily survive if the professions were not scrupulous of the truth in their dealings with each other and with the Court."28 The advocate may not colour that which is unjust by pretence of law and may not by misrepresentation cause the judge to stray from the path of truth.29 In Roman­Dutch times an advocate who dolo malo used a forged document to further a client's case was deported for ten years.30 There should be no repetitiveness, for brevity lubricates the wheels of justice;31 however the case should be stated fully.32 Delaying tactics are forbidden.33 The administration of justice is founded upon the preservation of the dignity of the courts. It is the duty of counsel to assist in upholding it. An attack upon or derogation from that dignity by counsel can lead to a charge of contempt of court.34 There may be no irreverence to the judge35 and counsel must be quiet in court while other cases are heard.36 Counsel is not allowed to prevaricate or act "in dirty ways".37 Counsel is not a mere agent of the client; his or her duty to the court overrides the obligations to the client, subject to the duty not to disclose the confidences of the client.38 The independence and objectivity of counsel is compromised if he or she has identified with the issues by also being a witness. Where counsel has made an affidavit on the merits he or she should not appear as counsel.39 The overriding duty of counsel not to mislead the court directly or indirectly by misrepresentations, false statements or otherwise, may lead to a conflict between counsel's duty to divulge to the court material facts of which he or she has knowledge40 and the duty not to disclose to any person, including in a proper case the court itself, information confided to him or her as counsel. Counsel is obliged to inform the court of every authority or decision of which he or she is aware, whether it be advantageous or prejudicial to the client's case.41 He or she may not invite the court to enforce an illegal transaction and may not knowingly lead perjured evidence. It is counsel's duty in ex parte applications to disclose all material facts to the court.42 As the system of justice is dependent on the quality of the assistance that advocates give to the court, it is essential that advocates, who hold themselves out as competent to practise in a particular field, bring and keep themselves up to date with recent authority in their field.43 On the other hand the advocate is not obliged to disclose the client's previous convictions or to correct information given or evidence led by the prosecution or opposing party if such correction would be to the client's detriment. He or she is entitled and by virtue of his or her duty to the client is obliged, to test the prosecution case to the full where the client has made a confession of guilt to him or her, but may not set up an affirmative case inconsistent with the confession.44 An advocate is not entitled in defending a client to attribute to another person the crime with which his or her client is charged wantonly or recklessly, unless the facts or circumstances given in the evidence or rational inferences drawn from them raise at least a reasonable suspicion that the crime may have been committed by the person to whom the guilt is so imputed.45 Counsel has a duty to refer unacceptable appeal records to the instructing attorney and require rectification. Failure to do so may bring about a punitive cost order.46 Counsel may not delay judicial proceedings.47 1 The bar rules have been standardised by the General Council of the Bar and are of general application. See also 1970 SALJ 345. 2 Olivier v Die Kaapse Balieraad 1972 3 SA 485 (A) 495. 3 Bar rule 1.5; but see Society of Advocates, Natal v Z 1988 3 SA 443 (N) 446B. 4 Bar rule 1.6. 5 Bar rule 3.1; S v Ntuli 2003 4 SA 258 (W) 260. 6 Bar rule 3.2. 7 Bar rules 3.3 3.4 4.12. 8 Olivier v Die Kaapse Balieraad supra; Society of Advocates of SA (Witwatersrand Division) v Cigler 1976 4 SA 350 (T) 354A 357B. 9 Supp ad Voet 3 1 9. 10 Merula Manier van Procederen 4 16 1; see Kersteman Woordenboek for definition of "advocaat". 11 Van der Linden Jud Pract 1 8 9; S v Longdistance (Pty) Ltd 1986 3 SA 437 (N) 444E. 12 Van Leeuwen RHR 4 33 1 11; and see Ex parte Hay Management Consultants (Pty) Ltd 2000 2 All SA 592 (W); 2000 3 SA 501 (W) 506. 13 S v Tromp 1966 1 SA 646 (N) 655B; bar rule 3.1; S v Ntuli supra 260. 14 S v Baleka (4) 1988 4 SA 688 (T) 705D. 15 Bar rule 3.1; S v Ntuli supra 260. 16 C 2 6 6 (1); Van Leeuwen RHR 5 4 2; Merula 4 17 8; Van Leeuwen Cens For 2 1 7 6. 17 Voet Commentarius 47 10 20 (viii), 3 1 9; Preston v Luyt 1911 EDL 298; Moolman v Slovo 1964 1 SA 760 (W); Pogrund v Yutar 1967 2 SA 564 (A); Basner v Trigger 1946 AD 83 107; Richards v Kuranda 1914 WLD 43 48; Gluckman v Schneider 1936 AD 151; Findlay v Knight 1935 AD 58 72; Joubert v Venter 1985 1 SA 654 (A). 18 Solomon v Van Leggelo 1938 TPD 75 80; Basner v Trigger supra 83; Findlay v Knight supra 58; Joubert v Venter supra; see too Van der Berg v General Council of the Bar of SA 2007 2 All SA 499 (SCA). 19 Moolman v Slovo supra; Basner v Trigger supra; Gluckman v Schneider supra 164 166; S v Radebe 1973 1 SA 796 (A) 814D; bar rule 3.3 3.4. 20 S v Xoswa 1965 1 SA 267 (C) 273; R v Ngema 1960 2 SA 263 (T). 21 S v Kubeka 1982 1 SA 534 (W) 536. 22 S v Omar 1982 2 SA 357 (N) 358; S v Gidi 1984 4 SA 537 (C) 539. 23 Basner v Trigger supra 107; Pogrund v Yutar supra. 24 Voet 3 1 9; Preston v Luyt supra 308; Richards v Kuranda supra 49. 25 Van der Linden Jud Pract 1 8 6. 26 C 2 6 6 (1); bar rule 4.12. 27 Voet 3 1 9; Schorer's note 527; Van Leeuwen Cens For 2 1 7 6; SA Associated Newspapers Ltd v Yutar 1969 2 SA 442 (A) 458. 28 Ex parte Swain 1973 2 SA 427 (N) 434H; Society of Advocates of Natal & the Natal Law Society v Merret 1997 2 All SA 273 (N); 1997 4 SA 374 (N). 29 Van der Linden Jud Pract 1 8 9; S v Hollenbach 1971 4 SA 636 (NC) 638. 30 Merula 4 66 7 5. 31 Van Leeuwen RHR 5 4 2; Merula 4 17 9; Van der Linden Jud Pract 1 8 6; Huber HR 4 18 13; Van Leeuwen Cens For 2 1 7 6. 32 Van Leeuwen RHR 5 4 2. 33 C 2 6 6 (4); Van Leeuwen RHR 5 4 2, Cens For 2 1 7 6; Voet 3 1 9; Merula 4 16 1. 34 R v Benson 1914 AD 357; R v Rosenstein 1943 TPD 65; Duffey v Munnik 1957 4 SA 390 (T); Duffey v Director of public prosecutions, Tvl 1958 1 SA 630 (T); R v Hawkey 1960 1 SA 70 (SR); R v Pitje 1960 4 SA 709 (A); S v Singh, Singh v Gifford 1964 3 SA 106 (N); R v Silber 1952 2 SA 475 (A); R v Rosenstein 1943 TPD 45; S v Nel 1991 1 SA 730 (A). 35 Van der Linden Jud Pract 1 8 6; see Kersteman for definition of "advocaat". 36 Merula 4 17 10. 37 C 2 7 1; Voet 3 1 9; Merula 4 16 1; Van Leeuwen Cens For 2 1 7. 38 Schoeman v Thompson 1927 WLD 282 283; Katzenellenbogen v Katzenellenbogen & Joseph 1947 2 SA 528 (W) 538; Ex parte Geffen 1923 TPD 373 376; Cape Law Society v Voster 1949 3 SA 421 (C) 425; R v Matonsi 1958 2 SA 450 (A) 456­457; Toto v Special Investigating Unit 2000 2 All SA 91 (E); 2001 1 SA 673 (E) 683; bar rule 3.2. 39 Carolus v Saambou Bank Ltd 2002 6 SA 346 (SECLD) 348. 40 Schoeman v Thompson supra 283; Katzenellenbogen v Katzenellenbogen & Joseph supra 538; Russell v Russell 1946 WLD 35. 41 Cf Noffke v Credit Corporation of SA Ltd 1964 3 SA 451 (T) 452; Toto v Special Investigating Unit supra 683. 42 Estate Logie v Priest 1926 AD 312 323; Power v Bieber 1955 1 SA 490 (W) 503; Ex parte Satbel (Edms) Bpk: In re Meyer v Satbel (Edms) Bpk 1984 4 SA 347 (W) 362. 43 Ex parte Hay Management Consultants (Pty) Ltd 2000 2 All SA 592 (W); 2000 3 SA 501 (W) 506. 44 Bar rule 4.11. 45 Bar rule 3.3 3.4. 46 Venter v Bophuthatswana Transport Holdings (Edms) Bpk 1997 2 All SA 257 (SCA)263c; 1997 3 SA 374 (SCA). 47 S v Moalusi 1994 2 SACR 604 (O).

133 Further duties Questions which affect the credibility of a witness by attacking his character but are not otherwise relevant to the actual enquiry should not be asked unless the cross­examiner has reasonable grounds for thinking that the imputation conveyed by the question is well founded or true. An instruction by an attorney that in his or her opinion the imputation is well founded or true may prima facie be regarded as reasonable grounds. An advocate should not accept as conclusive the statement of any person other than the instructing attorney that the imputation is well founded or true without ascertaining so far as is practicable in the circumstances that such person can give satisfactory reasons for his or her statement.1 In any event, questions which affect a witness's credibility by attacking his or her character should only be put if the answers would or might materially affect it. An advocate should always guard against being made the channel for questions which are only intended to insult or annoy the witness or any other person.2 Consultations Consultations should ordinarily be held in counsel's chambers or at home. They may be held in attorneys' offices if these are situated in a centre other than that where counsel practises or the bulk of documents, number of persons involved or other special circumstances dictate it. In such case the prior consent of a member of the bar council must be obtained. Consultations with clients should, save in exceptional circumstances, be conducted in the presence of the attorney or his clerk.3 Interviewing witnesses Interviewing witnesses should, save in exceptional circumstances, be conducted in the presence of the attorney or his or her clerk.4 It is in general undesirable for counsel to interview a witness after the witness has been sworn or made a solemn declaration to speak the truth.5 It is improper to interview a witness who is under cross­examination or after the completion of cross­examination and before re­examination unless circumstances make such an interview necessary. In such a case counsel who desires to hold the interview must inform the opponent before doing so. Should the opponent object, the court should be asked for permission.6 Where a fair trial requires it counsel for the accused may with the consent of the Director of Public Prosecutions or his or her representative, consult with a witness for the prosecution. If the consent is refused the court may grant permission. The Director of Public Prosecutions or his or her representative is entitled to attend such consultation. There is no right to consult with a witness who declines to be consulted or if the consultation will lead to intimidation, tampering with evidence, disclosure of state secrets or the identity of informers. A witness for the prosecution is someone from whom a statement has been obtained by the state in connection with the charge or the events from which it ensued, unless the prosecutor has decided not to call him or her, and is also someone who, having been called by the prosecutor to do so, has given evidence during the trial.7 The prosecution and the police may not suppress any evidence of state witnesses which is or what may be, favourable to the accused. It is therefore the duty of every prosecutor to notify the defence immediately of his or her decision not to call a witness from whom a statement has been obtained and to inform the defence immediately of any contradiction or material deviation by a witness for the prosecution from the statement.8 It is the duty of every prosecutor to afford access, on request from the legal representatives of an accused person, to the statements of witnesses and the relevant contents of the police docket subject to a right of refusal where the identity of an informer, state secrets, intimidation of witnesses or prejudice to the administration of justice call for such refusal unless such disclosure is ordered by a competent court. 9 A litigant's legal representatives are not precluded from interviewing any potential witness in a civil matter because the witness has been subpoenaed or interviewed by the other side. In such a case counsel must inform his or her opponent timeously of the intent to interview that witness.10 After the other side's witness has testified but before judgment the witness may not be interviewed in the absence of the other side's legal representatives, unless they, after timeous notification, have declined to attend. 11 An objection by the other side to the holding of any interview in a civil matter does not preclude the litigant's legal representatives from proceeding. 12 Legal representatives should ordinarily not obtain affidavits from prospective witnesses except where their evidence is to be presented in that form.13 The reason for this rule is that fear of prosecution for perjury might lead witnesses to stand by incomplete or incorrect statements in an affidavit during their viva voce evidence, to the detriment of the proper administration of justice. Personal involvement It is undesirable for counsel to become personally, as opposed to professionally, associated with his or her client's interests. Counsel should therefore not take part in a public movement for the reprieve of or stand bail for his or her client.14 Counsel must as far as possible avoid putting himself or herself in any position where he or she may have to make statements or give evidence in relation to matters which are in dispute in the case in which he or she is appearing.15 This rule does not preclude counsel for an accused, who is the only witness to an alleged gross irregularity committed by the presiding judicial officer, from making an affidavit on the facts for the purposes of review. Before counsel may make an affidavit or volunteer to give evidence in any case concerning matters which became known to counsel acting in his or her professional capacity, permission of the bar council must be sought.16 Where counsel is subpoenaed, compliance is required but professional privilege may be raised in court. It goes without saying that counsel does not act as both witness and counsel in the same case; and in such a case he or she cannot act as counsel. A corollary of this principle is that counsel should avoid making personal statements from the bar on disputed factual issues in which he or she was personally involved. Evasion of the law Counsel is entitled to advise the client whether any proposed conduct will contravene the law. He or she is further entitled to advise a course of conduct which will so order the affairs of the client as to avoid liability under taxing and other similar statutory provisions. He or she is clearly not entitled to devise a scheme which involves his or her client in the commission of any offence.17 Relationship with other counsel An advocate is not allowed to abuse the other advocate and there may not be open or clandestine derision of the adversary in the case.18 It is of vital importance that when an advocate seeks an assurance from his or her adversary that certain facts exist he or she will be able to rely implicitly on any assurance that may be given. It is imperative for the proper administration of justice that members of the profession be scrupulous of the truth in their dealings with each other.19 Clients are the litigants and not counsel. Ill­feeling existing between clients should not be allowed to influence counsel in their conduct and demeanour. Personalities and unseemly wrangling between counsel should be carefully avoided.20 Other callings A member of the bar may not engage directly or indirectly in any occupation if his or her association with that occupation adversely affects the reputation of the bar or prejudices his or her ability to attend properly to the interests of clients.21 Before 1996 the rule was more explicit, prohibiting active engagement in the carrying on of any other professional, commercial or industrial undertaking. It is not expected that the change in wording will materially affect the situation. The holding of a post as a part­time lecturer at a university or other educational institution which does not interfere with carrying out normal duties as a member of the bar is allowed, but the holding of a full­time teaching post is incompatible with active practice as a member of the bar. This is a very old rule. In Roman times advocates were not allowed to practise and also to act as counsellor to the official "as in order that the duties of an advocate are thoroughly performed it is abundantly sufficient to have those of each office done by one person, lest if anyone should employ himself to both, he may discharge those of neither in a proper manner".22 Advocates were only allowed to exercise their calling and no other and should they absent themselves for more than three years from their court's jurisdiction, they would be disbarred.23 Partnerships No relationship in the least degree resembling partnership in practice is permissible.24 1 See par 132 ante; bar rule 3.3 3.4. 2 Bar rule 3.3; S v Azov 1974 1 SA 808 (T) 810; S v Booi 1964 1 SA 224 (E) 227H; S v Makaula 1964 2 SA 575 (E) 578. 3 Bar rule 4.1. 4 Bar rule 4.1. Individual bars may deviate from this rule; eg the Pretoria Bar deleted parts thereof. 5 Bar rule 4.2. 6 Bar rule 4.2. 7 Bar rule 4.3.2: commented on in S v Sefadi 1994 2 BCLR 23 (D); 1995 1 SA 433 (D) 449. For the constitutional principles cf Shabalala v Director of public prosecutions, Tvl 1996 1 All SA 64 (CC); 1996 1 SA 725 (CC). 8 R v Steyn 1954 1 SA 324 (A) 337; S v Radebe 1973 1 SA 796 (A) 814; bar rule 4.3.2. 9 Bar rule 4.3.2. On the right of the state to cross­examine on statements taken from the defence witnesses cf S v Gquma (3) 1994 2 SACR 187 (C). 10 Bar rule 4.3.1; International Tobacco Co (SA) Ltd v United Tobacco Co (South) Ltd (1) 1955 2 SA 1 (W) 12D. 11 Bar rule 4.3.1. 12 Bar rule 4.3.1. 13 Bar rule 4.4. 14 Bar rule 3.5. 15 Bar rule 4.5; see Hendricks v Davidoff 1955 2 SA 369 (C); Carolus v Saambou Bank Ltd 2002 6 SA 346 (SECLD) 348. 16 Bar rule 4.5. 17 Bar rule 4.6. The fact that an illegal scheme was devised by counsel and that both counsel and client thought that it was legal, is no defence: S v Colgate­Palmolive Ltd 1971 2 SA 149 (T) 154­155. 18 Van der Linden Jud Pract 1 8 6; C 2 6 6 (1); bar rule 4.12. 19 Ex parte Swain 1973 2 SA 427 (N) 434H. 20 Bar rule 4.12. 21 Bar rule 4.15. see 1915 SALJ 154. 22 C 1 1 13. 23 C 2 6 6 (6), 2 8 7 (2), 2 8 9. 24 Bar rule 4.16. But see Commissioner, Competition Commision v GCB of SA 2003 4 All SA 145 (SCA); 2002 6 SA 606 (SCA).

134 Advertising, touting and publicity The basic rule was that it was unprofessional for advocates to canvass for work. This was so already in Roman­Dutch times.1 Generally speaking the rule, which was strictly enforced, was that an advocate should refrain from doing or allowing to be done anything which was likely to lead to the reasonable inference that it was done for the purpose of touting. Counsel were not permitted to engage in any activity amounting directly or indirectly to advertising, or to tout in any way. They could not send notices to attorneys and others notifying them of the intention to practise in any particular branch of law. However, in 2002 the rule was replaced with one entirely different. Counsel may now advertise. The advertisement must be factually correct, not misleading, in contravention of the law, vulgar, sensational or such as would bring the courts or profession in disrepute or ridicule. Counsel may with the prior approval of the Bar Council advertise that he or she is a specialist or offers specialist services.2 The extensive rules relating to publications, broadcasting, lectures, television appearances, interviews and photographs were repealed in 1991. This did not mean, however, that counsel then had carte blanche in those matters. The general rule against touting applied. The position is less clear since 2002, but the rule remains that counsel must act honourably in all situations and not bring the profession, bar or administration of justice into disrepute. Members of the bar should not write articles in non­legal publications with regard to pending cases or cases where the time of appeal has not expired.3 It is contrary to professional etiquette for counsel to engage in newspaper correspondence or to issue statements to news or current affairs media on the subject of cases in which they are or have been briefed or instructed.4 It is undesirable for a member to express an opinion in the press by letter, article, interview or otherwise on any matter which is still pending in the courts. However, a member may express an opinion in the media, in general terms, on an issue which is still pending, provided that the member does not thereby purport to pre­judge the result 5 It is unprofessional for any member of the bar to insert his or her name or cause or authorise such name to be inserted in a commercial directory in any media except in a professional directory. The publication of the names of all the members of a bar in a publication of the bar, or, if sanctioned by the bar council, the names of members of a group in a publication of that group, is allowed.6 A member of the bar may not in relation to his or her practice use any title other than advocate. 7 Counsel of sufficient experience and standing may request the instructing attorney to instruct a particular counsel, who is junior, to act with Counsel in any matter and to that end surrender to the latter that portion of his or her fee agreed upon with the attorney and the junior counsel. Exceptional circumstances apart, it is improper for counsel to recommend a specific attorney or firm of attorneys to a member of the public.8 A brief should not be accepted if the counsel briefed might reasonably be thought to have been in a position to exercise influence in the decision to deliver the brief to him or her. The following are examples: an advocate who is a director of a company should not accept a brief on behalf of such company and neither should a member of a local authority accept a brief on behalf of that local authority.9 In general there is no objection against a member of a voluntary association accepting a brief for such association, but there may be special circumstances rendering it undesirable.10 Proceedings of bar meetings are private and confidential and should not be communicated to the press. Discussion of professional work at the bar with outsiders should be conducted with the greatest discretion because of restraints of confidentiality.11 It is improper for counsel to appear as counsel before a tribunal of which he or she is a member unless there are exceptional circumstances and the bar council consents.12 1 Voet Commentarius 3 1 12. 2 Bar rule 4.17. 3 Bar rule 4.18.3. 4 Bar rules 4.18.3 4.21. 5 Bar rule 4.18.3 (f). 6 Bar rule 4.22.1, 4.22.3. Hortors Diary and Law List would probably qualify as a professional directory for the purposes of this rule. 7 Bar rule 4.22.2. 8 Bar rule 4.29. 9 Bar rule 5.6. 10 Bar rule 5.7. 11 Bar rule 4.23. 12 Bar rule 4.30.

135 Duty to act Counsel is under an obligation to take a case if he or she is available. In Roman times it was the duty of the judge to assure equal distribution of talent between opposing sides (for the proper administration of justice). If an advocate notified by the judge to take a case should refuse to appear for one of the parties without acceptable excuse, the advocate was dismissed from the bar.1 In modern times advocates are no longer notified by the judge to appear and the judges do not assure equal distribution of talent. Counsel are, however, from time to time requested to assist the court as amici curiae (without remuneration) in contentious matters where the proper administration of justice requires counsel's argument on both sides. This obligation to take a case if available is also reflected in the rules of the bar. It is formulated as follows: 2 An advocate is under an obligation to accept a brief in the court in which he or she professes to practise, at a proper professional fee, unless there are special circumstances which justify the refusal to accept a particular brief. In particular every person who is charged before the courts has the right to the services of counsel in the presentation of his or her defence. Subject to what has been said above, it is the duty of every advocate to whom the privilege of practising in courts of law is afforded, to undertake the defence of an accused person who requires his or her services. Any action designed to interfere with the performance of this duty is an interference with the course of justice. The fact that a member is an associate member will, unless the bar council decides otherwise, constitute such special circumstances. Counsel may decline a specialist brief if he or she considers himself or herself not competent to accept the brief.3 Counsel are obliged to undertake pro deo defences and legal aid matters when directed to do so by the bar council.4 Although counsel is not entitled to a brief on appeal where he or she appeared in the initial proceedings5 such initial brief constitutes a retainer by which the attorney is entitled to the services of that counsel on appeal. The appeal takes precedence over other briefs provided counsel was notified within a reasonable time.6 Any advocate is at liberty to refuse to practise before a particular court or tribunal without a special fee of a named amount. The fact that an advocate does not sympathise with the client's political or religious views does not entitle him or her to refuse to accept the brief. In Roman­Dutch times counsel were precluded by their oath of office to take cases which they knew to be unjust. They had to give a solemn oath of good faith to forsake at once a law suit which, as the struggle went on, was found to be shameless and bare of truth and right.7 According to Van der Linden this rule should not be stressed too far, for doubtful cases should be pleaded.8 This rule is no longer applicable in modern law. The requirement is, however, that counsel should not knowingly become party to a direct or indirect deceit of the court. However a party is, entitled to legal representation to have his or her side of the case presented to court in a professional way, however weak the case is. In Roman­Dutch times advocates were not allowed to take a case against the city where they had been admitted.9 This no longer obtains in the Republic. Counsel was severely limited in his or her right to draft affidavits for litigants. Although the rule prohibiting counsel from drafting affidavits was repealed, it is generally regarded as the task of attorneys. This is reflected in the approach on taxation.10 In all cases where a spouse or relative of counsel is involved, whether on the same side or on the opposite side, counsel should when in doubt, obtain a ruling of the bar council as to whether or not he or she should accept the brief. 11 A curator ad litem may not refuse to continue to act when the instructing attorney is blacklisted.12 1 C 2 6 7; Voet Commentarius 3 1 11. 2 Bar rule 2.1. 3 Bar rule 2.1.1. 4 Bar rules 6.1; 6.3. 5 Bar rule 5.1.7. 6 Bar rule 2.3. 7 Van Leeuwen RHR 5 4 2, Cens For 2 1 7 6; Voet 3 1 4, 3 1 9; Merula Manier van Procederen 4 16 1, 4 17 4; see Kersteman Woordenboek for definition of "advocaat". 8 Supp ad Voet 3 1 9, Jud Pract 1 8 9. 9 Merula 4 17 4. 10 Pretorius v Die SA Geneeskundige en Tandheelkundige Raad 1980 1 PH F5 (T) (this case sets out the then existing practice of the Johannesburg bar); Aloes Executive Cars (Pty) Ltd v Motorland (Pty) Ltd 1990 4 SA 587 (T) 589; Kriek v Bayer SA (Edms) Bpk; Kriek v van Staden 1996 1 All SA 534 (T). 11 Bar rule 5.4. 12 Bar rule 5.9.2.

136 Briefs Counsel may render professional services for reward only if briefed to do so.1 Counsel may be briefed orally but it is desirable that he or she receives a written brief. Counsel may insist on the latter and refuse to act without it.2 In the absence of any contrary indication, an advocate's mandate to represent a client in a criminal case ends automatically upon the client's discharge.3 It amounts to unprofessional conduct for an advocate to perform functions that are in the exclusive ambit of attorneys and it is improper for an advocate to accept such a brief.4 Briefing is done by attorneys or where applicable, by patent agents. Counsel is prohibited from taking instructions or fees from anyone else5 except in the case of pro deo and dock defences, prosecutions undertaken for the state and matters undertaken as amicus curiae at the request of a judge.6 There is a further exception to this rule. A member may take work from a person who is not a practising attorney who works for a community­ based law centre, university law clinic, the BLA Centre or any other institution or organisation which the General Council of the Bar (GCB) determines is similar in nature or in circumstances which the GCB regards as in the public interest. The GCB may impose conditions for such activity.7 A local bar council may require its members to undertake pro bono work fairly allocated amongst its members. A member may then recover fees on a contingency basis.8 It is the duty of all counsel to undertake pro deo defences and legal aid matters when directed by the bar council to do so.9 Should an advocate be briefed in a case which he or she believes to be beyond his or her experience or capacity the advocate should inform the attorney of this fact.10 Delivery of the brief does not of itself imply its acceptance by counsel.11 The acceptance of a brief is on the understanding that counsel may be prevented from attending at court. Should counsel be obliged to return a brief because he or she is so prevented, it is his or her duty not to embarrass the client by allowing insufficient time for another advocate to be engaged and to master the brief. Counsel may accept a watching or noting brief. An advocate is obliged to give personal attention to all briefs. It is improper for him or her to hand a brief received to anyone else except on the instructions of the instructing attorney.12 An earlier brief, once accepted, takes precedence over a later brief should any conflict arise in regard to the performance thereof. Counsel may only surrender the earlier brief in favour of the later one with the consent of both instructing attorneys.13 However, if counsel is briefed in a trial case such brief constitutes a retainer, by which the attorney is entitled to his services on appeal, provided this right is exercised within a reasonable time.14 Such counsel is not entitled as of right to be briefed on appeal.15 If counsel on request by an attorney has reserved a hearing date he or she is entitled to charge a fee on hearing unless the reservation was timeously cancelled.16 Counsel who is briefed at any stage of a case (for instance the drawing of pleadings, settling of affidavits or appearance in interlocutory applications) thereby receives a special retainer and is ordinarily entitled to be briefed at every stage throughout that case unless he or she is given express notice to the contrary upon first instruction.17 This rule does not apply in the case of formal motions and applications for the consolidation of actions. Where two counsel have been briefed the senior need not be briefed in relation to requests for further particulars and in interlocutory applications or the drawing of documents therefor.18 If counsel is offered a brief to which another counsel is entitled the first mentioned must, if the colleague states that he or she has not given up his or her claim to the brief, ascertain from the attorney why the brief has not been offered to such colleague. In the absence of a sufficient explanation the brief must be refused. The wish of the lay client or an excessive fee is sufficient explanation but the preference of the attorney is not. Counsel who is offered a brief for a client for whom another advocate holds a general retainer is not precluded by this rule from accepting the brief.19 An advocate may be retained by an attorney on behalf of a client either generally or for a specific matter. A fee is payable in respect of such retention. No retainer is binding on an advocate unless given in writing.20 An advocate is not bound to accept a general retainer. A general retainer implies that during the existence of the retainer, the holder will be briefed in every matter in which the client is concerned and in which it is appropriate, that he or she should be briefed having regard to his or her standing and the nature of the matter. It further implies that the holder will accept all such briefs which are offered in matters in which the client is concerned if it is possible to do so and that he or she will not act for the other party. The general retainer does not require the advocate to give up a brief which he or she has already accepted from another client even if it is possible to do so. The client's purpose in retaining a specific advocate is to preclude the client's competitors and possible adversaries from briefing such advocate against the client, and to place him or her on the client's side. In view of that advocate's skill, expertise and knowledge in the client's particular field this may be advantageous. No general retainer is binding for more than one year from the date of its receipt. The giving of a general retainer confers no authority on counsel. A brief must be delivered in order to authorise counsel to take any steps in the proceedings. Such brief would be separately marked. A general retainer applies only to proceedings to which the client on whose behalf the retainer was given is a party.21 A special retainer obliges the holder of it not to act for the other side in a specific matter and implies that the member will take the brief if possible. A counsel who has received a special retainer is entitled to a brief on every occasion on which counsel is briefed in such proceedings.22 Counsel who is briefed at any stage of a case where the merits are involved is in the position of having received a special retainer in that case and is therefore ordinarily entitled to be briefed at every further stage unless he or she is given express notice to the contrary when receiving the first brief.23 This rule does not preclude the client from terminating counsel's brief at any stage. An advocate who has appeared for a party in any proceedings is not entitled as of right to the brief on appeal.24 Nor is he or she entitled to accept a brief on appeal for the opposite side.25 Counsel is not obliged to accept a brief if he or she has previously held a brief to advise another person on or in connection with the same matter. He or she is precluded from doing so if relevant confidential information was disclosed to him or her or the first client might reasonably think that counsel would be prejudiced.26 An advocate who has given an opinion may if not briefed by that client, argue the case for the other side, but if he or she has gained knowledge of facts which would embarrass him or her in the conduct of the case, the brief must be refused. Counsel must obtain the permission of both attorneys before taking the unusual step to accept such brief.27 Counsel who has sat as a commissioner at an enquiry in terms of the Companies Act28 and has submitted a report on the evidence, is not entitled to act as prosecutor or for the defence in respect of offences revealed. An advocate who appeared for the liquidator at such enquiry is not permitted to accept a brief for the defence.29 A brief should not be accepted if it might reasonably be thought that counsel has been in a position to exercise influence in the decision to deliver the brief to him or her. For instance a director of a company or a member of a local authority should not accept a brief to act on its behalf.30 Members of voluntary associations may accept a brief for such organisation unless there are special circumstances rendering it undesirable.31 An advocate who acts as arbitrator or umpire in an arbitration should obtain a brief from an attorney except where briefed by a formal arbitration body. Advocates appearing before an arbitrator must be properly briefed.32 Counsel may settle the reasons to be furnished by a tribunal or person whose decision is taken on review, but may not deviate from the true reasons.33 Counsel acting as curator ad litem must be briefed by the attorney who nominated him or her.34 Representations to public officials Members of the bar are permitted to accept briefs to make representations to ministers, officials or statutory bodies, but are not obliged to accept such briefs.35 Interviews should be arranged, information and memoranda furnished and interviews attended by the instructing attorney36 except where counsel deals with the director of public prosecutions, senior public prosecutor or members of their staff.37It is improper for counsel briefed in such matters to seek to procure the exercise of a discretion or the grant of an indulgence to his or her client which would be contrary to any law or to add his or her personal recommendation or approval to the application.38 1 Bar rule 5.1.1. Rösemann v GCB of SA 2003 4 All SA 211 (SCA); 2004 1 SA 568 (SCA) 577. 2 Bar rule 5.1.2­3. 3 S v Venter 1999 2 SACR 231 (SCA). 4 General Council of the Bar of SA v Röseman 2002 1 SA 235 (C); on appeal Rösemann v GCB of SA 2004 1 SA 568 (SCA) 577. See also De Freitas v Society of Advocates of Natal 2001 3 SA 750 (SCA); General Council of the Bar of SA v Van der Spuy 1999 1 SA 577 (T). 5 Bar rule 5.12.1 ­ except for the legal aid board. The Pretoria Bar allows payment by a member to another member of a reasonable fee for deviling. 6 Bar rule 5.12.1­2. 7 Bar rule 5.12.3. 8 Bar rule 5.12.4. 9 Bar rule 6.1, 6.3. 10 Bar rule 2.1.1. 11 Grobbelaar v Grobbelaar 1970 2 SA 274 (E) 276. 12 Bar rule 2.4. 13 Bar rule 2.2. 14 Bar rule 2.3. 15 Bar rule 5.1.7. 16 Bar rule 5.2.4. 17 Bar rule 5.1.5. 18 Bar rule 5.1.6. 19 Bar rule 5.1.8. 20 Bar rule 5.2.1. 21 Bar rule 5.2.2. 22 Bar rule 5.2.3. 23 Bar rule 5.1.5. 24 Bar rule 5.1.7. 25 Bar rule 5.5.4. 26 Bar rule 5.5.1. 27 Bar rule 5.5.2. 28 61 of 1973. 29 Bar rule 5.5 3. 30 Bar rule 5.6. 31 Bar rules 5.7 5.10. 32 Bar rule 5.8. 33 Bar rule 5.8.3. 34 Bar rule 5.9.1. 35 Bar rule 5.3.1. 36 Bar rules 5.3.2 5.3.4 5.3.5 5.3.6. 37 Bar rule 5.3.9. 38 Bar rule 5.3.7.

137 Breach of confidence Advocates are not entitled to breach their client's confidence by going over to the other side after learning one side's case. The fact that the first side has no foundation in law makes no difference. The reason for this rule is to prevent the discovered secrets of the former client being utilised to the latter's undoing.1 From this rule it follows that no counsel can be required to accept a retainer or brief or to advise or draw pleadings if he or she had previously advised another person in connection with the same matter and he or she may not do so if, by reason of confidence imposed in him or her by such person or a retention held for such person, the acceptance of such new instructions might be interpreted as a breach of confidence. It follows that where counsel has held a brief for a party in any proceedings, he or she is not entitled to accept a brief on appeal for the opposite side. An advocate may not appear for two defendants or for two accused if there is likely to be a conflict between them.2 These principles of the common law are reflected in more detail in the bar rules.3 1 Voet Commentarius 3 1 4; Van Leeuwen Cens For 2 1 7. 2 S v Naidoo 1974 3 SA 706 (A) 712; S v Moseli (1) 1969 1 SA 646 (O); S v Jacobs 1970 3 SA 493 (E). 3 See par 136 ante; bar rules 5.5.1, 2, 3, 4.

138 Double briefing An advocate may not take more cases than he or she can comfortably accommodate without detracting from the clients' rights.1 The president of the court or others appointed by him did in several courts of the Netherlands investigate whether this rule was complied with and interdicted transgressors from taking further cases.2 This rule is reflected in the modern rule of the societies of advocates against double briefing.3 1 Merula Manier van Procederen 4 17 5. 2 Merula 4 17 5. 3 Olivier v Die Kaapse Balieraad 1972 3 SA 485 (A) 490C; and cf S v Memani 1994 1 SA 515 (W) 521G; 1993 2 SACR 680 (W).

139 Robing Proper reverence should be afforded the court and advocates should be properly robed in court.1 In Roman­Dutch times the dress consisted of a black cloak or pleyt­tabberd and a black hat. Coloured clothes were not allowed. In olden times counsel used to wear their robes from their homes to court, but in Merula's time this was no longer done and they robed at court.2 Nowadays a black coat (or in the case of silks a black waistcoat) and white shirt with white biffy are worn under the black gown. No hat is worn. In Van der Linden's time counsel used to stand while addressing court, bare­ headed, until the presiding judge instructed them to cover their heads.3 Such instruction is no longer issued. Counsel should robe before the Constitutional Court, the Supreme Court of Appeal, the High Court, Water Court, Income Tax Court, Court of the Commissioner of Patents, the Special Court of Appeal against decisions in terms of the Maintenance and Promotion of Competition Act, the Land Claims Court, the Labour Court, the Labour Appeal Court, all other courts and tribunals of a status similar to the High Courts and such other tribunals as the bar council may direct.4 Counsel do not robe in a magistrates court and ordinarily need not robe when appearing before a judge in chambers. The robe of counsel bears witness to the tradition of centuries that what he or she received from the client was a gift or honorarium and not a stipulated wage. At the back of the junior's robe there is still the flap of the little pocket where the client could place his gift. This kept up the pretence that the advocate did not know that he was being given a reward. 1 Van der Linden Jud Pract 1 8 6; Merula Manier van Procederen 4 17 7; Van Leeuwen Cens For 2 1 7. 2 Merula 4 17 7 fn 5. 3 Van der Linden 1 8 6; Merula 4 17 7. 4 Bar rule 4.27.

140 Advocates' fees "The calling of advocate is one which is praiseworthy and necessary to human life, and it should, by all means, be remunerated with princely generosity."1 Despite this statement from antiquity, counsel was then and is now only entitled to a reasonable fee.2 In Roman times those guilty of extortion by charging excessive fees were immediately expelled from the profession.3 Originally in Roman times no fee had to be paid to advocates, but gradually the practice grew of recompensing the work expended for a client by a fee proportionate to the extent of the suit, the eloquence of the advocate and the usage of the court in which he would act. This was subject to a maximum of 100 gold pieces.4 In Voet's time a fee fell due according to the rule and long­established practice of each court, in proportion to the labour spent, the sum to be cut down by taxation by the judge if desired. It made no difference if the fee was promised or not, for advocates were allowed to claim even an unpromised fee.5 In Van der Linden's time fees were charged according to immemorial custom (and not a prescribed tariff) mostly on the basis of the time expended though there is also a reference to ordinances and rules which prescribed certain "leges"and "jura".6 The following rules have been laid down by the bars: Counsel is entitled to a reasonable fee for all services. In determining the amount it is proper to consider the time and labour required, the novelty and difficulty of the matter and the skill involved, the customary charges by counsel of comparable standing for similar services, and the amount involved in the controversy and its importance to the client. In determining a proper fee it should be borne in mind that advocacy is a profession and not a commercial undertaking. Its primary aim is the furtherance of the administration of justice and not mere money­ making. In determining a proper fee counsel should avoid overestimation of the value of their advice and services as well as undervaluation. The client's ability to pay does not justify a charge in excess of the value of the service. His or her lack of means may require a lower charge.7 There is no prescribed minimum fee but a bar council may recommend minimum fees for particular services. These do not apply where counsel is acting pro amico, pro deo, in dock defences or at the request of the court or the bar council. 8 The recommended minimum fees serve as a guide and it is not unprofessional conduct to charge less.9 Full fees or no fees at all must be charged irrespective of results. The result may not influence the fee.10 There is an exception, however, in the case of a contingency fee. This is dealt with below. Counsel at the earliest opportunity after having been offered a brief, must endeavour to agree with the attorney on the fee to be charged or the basis of its computation. This rule does not apply in exceptional circumstances, where a recommended minimum fee or less is charged or where a standard fee for that work has evolved in practice. If no agreement is reached counsel must mark a reasonable fee.11 If a dispute arises concerning the reasonableness of counsel's fee the matter may be referred to mediation. With or without mediation , should the dispute remain unresolved the bar council or a committee thereof determines whether the fee is reasonable. At least one practising attorney participates.12 Briefs are sent to counsel marked or unmarked with a fee. Where counsel accepts the marked brief he or she thereby consents to that fee. In the case of an unmarked brief, fees are dealt with as set out above. All briefs must be marked at the earliest reasonable opportunity after the work is done13 and once marked the fee may not be increased or reduced by reason of the result. A fee may not in any circumstances be altered later than one month after marking without the consent of the bar council.14 A brief may not be marked "at such fee as may be allowed on taxation".15 These rules do not apply when counsel is briefed to act for the law society in disciplinary matters.16 The fact that a fee is reduced on taxation between party and party is not conclusive as to the reasonableness of the fee marked by counsel. Where counsel has taken a brief subject to an agreement to charge no fees, no fee will be recoverable by the advocate and no fee for such counsel may be brought up for taxation by the instructing attorney.17 The bar councils had the power in appropriate cases to grant permission to members to charge fees on result. Due to the advent of contingency fees the rule18 became redundant. Such cases included the case where one member acted for another member or a near relative of a member on this basis. This is in accordance with the view of Voet who states that in pro amico appearance the successful counsel should be entitled to his fees, as it is just that the loser be condemned to pay the advocate's fees even if the winner by reason of ties of friendship or blood spent nothing.19 A fee may be claimed proportionately where the advocate acts for himself or herself and others.20 Voet is of the opinion that counsel who appear in their own cases and win, are entitled to fees; other writers disagree.21 Merula states that advocates who conduct their own cases are by the communis opinio not entitled to their normal fee, but only to their damages and interest.22 Voet was followed by the courts.23 The pactum de quota litis whereby an advocate stipulated that he would obtain a share in the proceeds of the suit in lieu of fees was in Roman­Dutch and in modern times strictly forbidden.24 The reason for this rule is that it has always been regarded as against public policy for counsel to obtain a portion of the winnings. An agreement to claim fees only after victory was equally forbidden, as being infra dignitatem.25 The Contingency Fees Act of 199726 however provides that a legal practitioner may agree with his client to charge fees only if successful and then at a fee up to double his normal fee with a maximum of 25% of the award. Such agreement must be in writing and contain certain prescribed clauses.27 In such cases an offer of settlement may only be accepted after the legal practitioner has filed an affidavit stating certain prescribed information about it.28 Such agreement and fees are subject to review by the professional controlling body.29 The fact that the attorney agrees to counsel's marking of an excessive fee does not render the advocate's conduct less unprofessional. He or she remains liable to censure by the relevant law society and the court. The fact that the senior marks an excessive fee does not exonerate junior counsel.30 Liability for fees In Roman times the fees of advocates became prescribed in two years.31 In Roman­Dutch times this was hardly observed in practice, though it was statutorily enacted in 1540 and 1659.32 Advocates could sue their principals for their fees.33 Nowadays the attorney is liable for the payment of the fees of the advocate briefed even though the advocate was briefed on behalf of a client. This rule is an old one and has arisen through long­standing practice.34 This does not mean, however, that the client can no longer be sued by counsel for his or her fees. An advocate must keep proper fee books,35 render accounts to the attorneys and report regularly to the bar council on outstanding fees.36 Fees are payable in advance (if so stipulated) or at the end of a period determined by the bar.37 The bar councils grant extensions of the time for payment on good cause. All bars have rules relating to the listing of defaulting attorneys (the so­called black list) and the barring of such practitioners. This disqualified them from obtaining any services from any member of the bar. By virtue of a reciprocal arrangement this disqualification was enforced against such practitioners by all constituent bars of the general council. The disqualification remained in force for as long as the attorney remained on the defaulters' list and it extended to a partner of such attorney.38 Since 2001 the rule has been more lenient. Counsel may refuse to accept a brief from such defaulter but is not obliged to do so. It is improper for counsel to agree with a briefing attorney that counsel will await payment of the fees payable on that brief until the attorney has received them from the client.39 Fees may only be waived with the permission of the bar council.40 Fees for professional services may only be paid by and through an attorney (this includes a patent agent) or by the legal aid board. An exception is in the case of a dock defence, prosecutions undertaken for the state and pro deo defences.41 It is no longer contrary to the etiquette of the profession for a member to sue an attorney for fees. Defaulters who have not declared a dispute within 30 days of demand or whose dispute has been decided against them, may forthwith be sued.42 Taxation of fees In the High Court the advocate's fees as between party and party are taxed by the taxing master who must allow such fees as he or she considers reasonable, provided that in certain matters a tariff of maximum fees for advocates is applicable.43 The fees of only one advocate may be included in a party­and­party bill of costs unless the court authorises fees consequent upon the employment of more than one advocate.44 Where fees in respect of more than one advocate are allowed in a party­and­party bill of costs, the fees to be permitted in respect of any additional advocate may not exceed one­half of the fees allowed in respect of the first advocate.45 Fees to counsel will in the magistrates court only be taxable as between party and party when the amount in dispute exceeds a prescribed minimum46 or where the court has awarded costs on any scale higher than that on which the costs of the action would otherwise be taxable.47 These costs may only be allowed when payment of them is vouched by the signature of counsel.48 1 C 2 8 4. 2 C 2 6 6 (5); Van der Linden Jud Pract 1 8 6. Cf Society of Advocates of SA (Witwatersrand Division) v Cigler 1976 4 SA 350 (T) 354­356. 3 C 2 6 5. 4 Voet Commentarius 3 1 6; D 50 13 10 12; Tacitus Annals Book 2 ch 7 at the end; Wessels History of Roman­Dutch Law 192; 1966 SALJ 363 365. 5 Voet 3 1 6. The fixed fees of the various Placaaten of 1531, 1582 and 1596 (Groot Placaat Boek 2 703 pars 73­83, 790 pars 140­166) gradually became a minimum which could be increased (Groot Placaat Boek 3 677 pars 1­19 47­49) and by the time of Voet had long been abrogated by disuse; Van Zyl 1896 CLJ 170­171. 6 Van der Linden Jud Pract 4 3 3, 4. In respect of fees Van Leeuwen states: "Quod non pro advocati facundia, nec pro causae quantitate, sed pro ratione laboris atque itineris, pro fori et judicii consuetudine taxari solet": Cens For 2 1 7 8. 7 Bar rule 7.1.1. 8 Bar rule 7.1.3. 9 Bar rule 7.1.4. 10 Bar rule 7.1.5; Society of Advocates of SA (Witwatersrand Division) v Cigler supra 356. 11 Bar rules 7.1.2 7.2.2. 12 Bar rule 7.1.5. 13 Bar rule 7.2.1. 14 Bar rule 7.2.3. 15 Bar rule 7.2.4. 16 Bar rule 7.2.5. 17 Bar rules 7.3.1 7.3.2. 18 Bar rule 7.3.3. See Commissioner, Competition Commision v GCB of SA 2002 6 SA 606 (SCA). 19 3 1 7. 20 Voet 3 1 7. 21 3 1 7. 22 Manier van Procederen 4 66 7 11. 23 See Du Plessis v Wilsnach 1915 CPD 539 540; Webb v Union Government 1917 TPD 195 199­200; Shepstone v Colonial Securities Co (1883) 4 NLR 30; Lewin v Muller & Du Toit 1914 EDL 467; Texas Co (SA) Ltd v Cape Town Municipality 1926 AD 467 488 499; Knoll v Van Druten 1953 4 SA 145 (T) 147 148. No reference was made in any of these cases to Merula's views. 24 Van Leeuwen RHR 5 4 2; Voet 3 1 2; Merula 4 16 1; see Kersteman Woordenboek for definition of "advocaat"; Van Leeuwen Cens For 2 1 7 6; Olivier v Die Kaapse Balieraad 1972 3 SA 485 (A) 501F; Incorporated Law Society v Reuter 1913 TPD 801. 25 Voet 3 1 12; Merula 4 16 1; see Kersteman for definition of "advocaat". 26 66 of 1997. 27 S 2. Government Gazette 20009 GN R 547, 23 April 1999. 28 S 3. 29 S 4. And see Government Gazette 21719 GN R1110, 3 November 2000 which amends GN R546, 23 April 1999. 30 Society of Advocates of SA (Witwatersrand Division) v Cigler supra 354­356; Algemene Balieraad van SA v Burger 1993 4 SA 510 (T). 31 C 2 6 3. 32 Voet 3 1 6; Merula 4 108 2. 33 Van der Linden RHR 5 11 4. 34 Van Zyl 169. In the rules of the Supreme Court bar of the Cape of Good Hope of 1882 and the Regels der Balie of the SA Republic 1891 the principle was clearly recognised "that all fees to counsel are of right due and payable in advance" and no advocate was allowed to appear in court unless the fee marked on the brief had been paid by delivery thereof: "geschied die betaling niet, dan zal de procureur of agent zichzelf persoonlyk aanspraakelyk zyn voor de behoorlyke betaling van zoodanige fooi." This practice has not hardened into a rule of law and has to be proved: Bertelsmann v Per 1996 2 SA 375 (T); see too Minister of Finance v Law Society Tvl 1991 4 SA 544 (A) 552. 35 Bar rule 7.4. 36 Bar rules 7.7 7.5. 37 Bar rule 7.6. 38 Bar rule 7.7.17, before its amendment in 2001. 39 Bar rule 7.8. 40 Bar rule 7.7.16. 41 Bar rule 7.9. 42 Bar rule 7.9.2. 43 High Court Rules r 69(5) (3). 44 R 69(1). 45 R 69(2). As to the relevant factors where more than one counsel is employed on one side, see the cases mentioned in Herbstein and Van Winsen Civil Practice 505 fn 53; Cilliers Costs 268­272; Erasmus Superior Court Practice B1­418A. 46 Magistrates' Court Rules annexure 2 table A part 1 item 6. 47 R 33(8). 48 Magistrates Court Rules annexure 2 table A part 1 item 6. The maximum fees to counsel taxable upon taxation are set out in Sch 2 table A part 4 items 21­30 of the rules (part 4 was substituted by GN R38, 2002 with effect from 18 February 2002 and GN R1299, 2002).

141 Signature of counsel In the High Court a combined summons and every other pleading except a summons must be signed by both an advocate and an attorney or by an attorney who has the right of appearance or by the party personally.1 The request for further particulars and the reply to it form part of the pleadings and are signed likewise,2 so too a replication.3 Should the parties to a dispute agree upon a written statement of facts in the form of a special case for the decision of the court4 and in the case of an exception, the same rule is applicable. An exception is a pleading and this must be signed by an advocate.5 1 High Court Rules r 18(1). 2 R 21(3). 3 Bredenkamp v Dart 1960 3 SA 106 (O). 4 R 33(2)(a). 5 Haarhoff v Wakefield 1955 2 SA 425 (EDL) and Minerals & Quarries (Pty) Ltd v Henckert 1967 4 SA 77 (SWA) 80G are no longer applicable.

142 Absence or non­availability of counsel Terminated actions cannot be revived on the pretext that the advocate was absent.1 The court will not grant a postponement of the case because the trial date does not suit counsel.2 The non­ availability of a specific counsel is also not a reason for a postponement.3 It is improper conduct for counsel to seek or arrange a postponement or deferment of the hearing of a matter in order to suit his or her convenience unless he or she has fully disclosed his or her reasons to the instructing attorney and the legal representatives of the other party and has obtained the consent of his instructing attorney.4 1 C 2 6 4. 2 R v Gannon 1911 TPD 270; Ecker v Dean 1939 SWA 22; Kelly v RM Woodstock 17 CTR 342; Ex parte Bloemfontein Municipality: in re Richter v Bloemfontein Municipality 1937 1 PH F32 (O); Murphy v SAR&H (3) 1946 NPD 642; D'Anos v Heylong Court (Pty) Ltd 1950 2 SA 40 (C). 3 Duncan v Roets 1949 1 SA 226 (T); Centirugo AG v Firestone (SA) Ltd 1969 3 SA 318 (T). To seek a postponement because of double briefing is conduct unbecoming an advocate: S v Memani 1994 1 SA 515 (W) 521G; 1993 2 SACR 680 (W). 4 Bar rule 3.6.

143 Lien on documents Counsel has no lien on documents for his or her fee other than the ordinary common law right of retention;1 but the client may not take the advocate's papers and pleadings to another for signature or service unless the client has paid the advocate's fee.2 1 Voet Commentarius 3 1 6; Merula Manier van Procederen 4 108 1. 2 Merula 4 108 1.

144 Errors of advocates In Roman times a client was bound by allegations made by his advocate in his presence,1 but he was not bound by errors in the petition, which should not prejudice the truth.2 The client was, however, bound when the case had terminated.3 In Voet's time advocates' mistakes were binding on the client but could be rectified at any time before joinder of issue and thereafter, unless the correction was made on the same day by restitutio in integrum.4 Except in the case of fraud, an advocate was not responsible for his errors.5 (Non constat that the advocate could not be struck off for failing to prepare properly.) An advocate could be sued for damages for fraud and "ill will" but not for mere inexpertness or a mistake of fact or law.6 These principles still apply.7 The court will not bind counsel to a mistaken concession made under a misapprehension or made loosely and incautiously during litigation.8 This does not apply to formal admissions made deliberately and formally and recorded as such. These are binding on the client. Statements made by counsel during the opening address will not be accorded decisive effect in regard to proof of facts necessary to a party's case or defence. The same applies in respect of counsel's closing argument. The position is different where the court is informed during such addresses of a settlement between the parties or where it is intended to make a formal admission. This should then be formally recorded.9 Within the limits of the brief and subject to specific instructions which counsel may accept, he or she has a complete discretion in the conduct of the case. The decision whether to call a witness or not and on the manner of presentation of the evidence and the address to the court is that of counsel and not that of the client. The latter is bound by it.10 Unless counsel receives instructions, either express or implied, to compromise, he or she has no authority to do so.11 1 C 2 10 1. 2 Ibid 2 10 2. 3 Ibid 2 10 3. 4 Voet Commentarius 3 1 10. 5 Van Leeuwen RHR 4 33 11. 6 Voet 3 1 10. Cf D 50 17 47. Van der Linden in his note on this text of Voet would also grant an action for damages in case of slack carelessness if it is not free from gross negligence. 7 See 1966 SALJ 363; 1968 SALJ 320. For the different position in English law, see Rondel v Worsley 1966 3 All ER 657 (CA) and Rondel v Worsley 1967 3 All ER 993 (HL); Saif Ali v Sydney Mitchell & Co & P 1978 3 All ER 1033 (HL); see too Halsbury's Laws of England vol 3(1) for definition of "barristers". For possible liability to the other party see 1990 THRHR 553. In general see Midgley Lawyers' Professional Liability 1 ed.; 2005 (8) Advocate 45. 8 Engel v Race Classification Appeal Board 1967 2 SA 298 (C) 302B. See Holt v Jesse 1876 (3) Ch 177 184; H Clerk (Doncaster) Ltd v Wilkinson 1965 1 All ER 934 (CA). 9 Standard Bank of SA Ltd v Minister of Bantu Education 1966 1 SA 229 (N) 242H; De Wet v Western Bank Ltd 1977 4 SA 770 (T) 779C­G. 10 R v Matonsi 1958 2 SA 450 (A) 456­457; Klopper v Van Rensburg 1920 EDL 239 242; S v Louw 1990 3 SA 116 (A) 124A­125E; see 1995 THRHR 310. 11 Tvl Canoe Union v Butgereit 1990 3 SA 398 (T) 409I­410F. But see Dlamini v Minister of Law & Order 1986 4 SA 342 (DCLD) 346I­348E. A stronger case can be made out for authority on the part of an attorney to compromise, and even that is doubtful. See Little v Spreadbury 1910 2 KB 658 664 665; In re A Debtor: ex parte The Debtor v The Petitioning Creditor 1914 2 KB 758 760­761; Mfaswe v Miller 1901 (18) SC 172; Alexander v Klitzke 1918 EDL 87; Sussman v Testa 1951 2 SA 226 (O) 231F; De Vos v Calitz & De Villiers 1916 CPD 465 468 470; Vena v Port Elizabeth Divisional Council 1933 EDL 75; Paramount Stores Ltd v Hendry (1) 1957 2 SA 451 (W); Neale v Gordon Lennox 1902 AC 465; Voet 3 3 18; Goosen v Van Zyl 1980 1 SA 706 (O) 709.

145 Advocates as witnesses In Roman­Dutch times advocates could not give evidence in cases in which they had been engaged.1 This rule no longer pertains but it is highly undesirable that counsel should become a vital witness for his or her client.2 The independence and objectivity of counsel is compromised if he or she has identified with the issues by also being a witness. Where counsel has made an affidavit on the merits he or she should not appear as counsel. 3 It is a sacrosanct and inviolable rule that counsel may not without the consent of the client give evidence in regard to disclosures made by that client in the course of consultation.4 1 Van Leeuwen RHR 5 20 17. It should be remembered, however, that likewise no man could give evidence in his own case, nor relatives, nor members of his household: 5 20 16. 2 Hendricks v Davidoff 1955 2 SA 369 (C); and see Landers v Vogel (Review of Taxation) (1906) 27 NLR 590; Becker v R 1928 12 PH H101 (A); Elgin Engineering Co (Pty) Ltd v Hillview Motor Transport 1961 4 SA 450 (D); Hailmer v Hailmer 1963 2 PH F76 (C); Wronsky v Prokureur­Generaal 1971 3 SA 292 (SWA); and see 1909 SALJ 380; bar rule 4.5. 3 Carolus v Saambou Bank Ltd 2002 6 SA 346 (SECLD). See also par 133 ante sv personal involvement and bar rule 3.5. 4 H Heiman, Maasdorp & Barker v Secretary for Inland Revenue 1968 4 SA 160 (W) 162. For the scope of the privilege, see R v Fouche 1953 1 SA 440 (W) 445; R v Davies 1956 3 SA 52 (A) 57­59; S v Kearney 1964 2 SA 495 (A) 499.

146 Legal assistance to indigent persons In forma pauperis Where a person desires to bring or defend proceedings in forma pauperis the local society of advocates at the request of the registrar nominates an advocate who is willing and able to act, and upon being so nominated, he or she must act in that case.1 Upon institution of proceedings the advocate must sign a statement that he or she is satisfied that the litigant concerned is unable to pay fees and that the advocate is acting gratuitously. The advocate must further sign a certificate of probabilis causa.2 The advocate must thereafter act gratuitously for the said litigant and is not at liberty to withdraw, settle or compromise the case or discontinue his or her assistance without the leave of a judge.3 The advocate is entitled to fees only if the client is successful and then only to the extent that his or her fees are allowed on taxation and recovered.4 Legal aid Legal aid for indigent persons, whether rendered gratuitously for legal aid bureaux or at a reduced free for the legal aid board5 is regulated by the bar council concerned and rendered on brief from an attorney. Pro deo defences In Roman­Dutch times indigent people who could not get an advocate to act gratuitously for them, had one appointed for them by the court and such advocate was obliged to act gratis and pro deo.6 This practice was introduced in the Cape during the days of the Batavian government from 1803 to 1806.7 The right to pro deo defence was statutorily entrenched in the South African Republic8 and the Republic of the Orange Free State.9 Until the abolition of capital punishment the practice was to afford pro deo defence by counsel to an accused person charged with a capital offence.10 Thereafter the practice was continued in serious cases. The words "pro deo" are intended to convey that counsel is unpaid. For a considerable time, however, pro deo counsel were paid a small fee, refresher and travelling and subsistence allowance. Pro deo counsel are appointed by the bar council of the society concerned or by some official of it to whom this task is delegated, and not by the court.11 Legal aid replaced the practice of pro deo defences. 1 High Court Rules r 40(1)(b). 2 R 40(2). On the certificate probabilis causa and counsel's duties in connection with it, see Herbstein and Van Winsen Civil Practice 813­814 and cases there mentioned; Harms Civil Procedure in the Supreme Court E10. 3 R 40(5). 4 R 40(7). 5 Legal Aid Act 22 of 1969; bar rule 6.3. See title LEGAL AID. 6 Van der Linden Institutes 3 2 5 (Juta's translation 263). 7 Provisioneele Instructie voor de Raad van Justitie art 130; Botha 1924 SALJ 255 256. 8 Criminal Procedure Ord 5 of 1864 (Tvl) s 98. 9 Wetboek van Den Oranje Vrystaat 1891 s 150 c VIII (in respect of criminal appeals). 10 See (1913) 30 SALJ 186; 1965­1966 Acta Juridica 87­91. 11 S v Gibson 1979 4 SA 115 (D) 124.

147 Right of audience Counsel's appearance in the Supreme Court of Appeal without prior notification or the filing of heads of argument is irregular.1 It is doubtful whether a court has the power to order that an advocate is no longer permitted to act for an accused.2 Advocates are frequently appointed as arbitrators or umpires in arbitration proceedings in terms of the Arbitration Act.3 Advocates also act as commissioners to take evidence in the Republic and elsewhere on commission either on behalf of the court or on behalf of an arbitration tribunal.4 An arbitration tribunal may, on the application of any party to the reference and must, if the court on the application of any such party so directs, or if the parties to the reference so agree, at any stage before making a final award state any question of law arising in the course of the reference in the form of a special case for the opinion of the court or for the opinion of counsel. Such an opinion will be final and not subject to appeal, and binding on the arbitration tribunal and on the parties to the reference.5 A registered medical practitioner accused of misconduct is entitled to legal representation, which includes an advocate, at the hearing by the professional board instituted in terms of the Medical, Dental and Supplementary Health Service Professions Act.6 The same applies in respect of an inquiry by the South African Nursing Council into misconduct by any registered or enrolled person in terms of the Nursing Act7 and an inquiry by the pharmacy board in respect of misconduct by any person registered under the Pharmacy Act.8 The Pharmacy Board may9 appoint as an assessor at any enquiry held by the board a person with adequate experience in the administration of justice to advise it on matters of law, procedure or evidence. A person registered under the Veterinary and Para­Veterinary Professions Act 10 and accused of misconduct11 is likewise entitled at the enquiry to be represented by his counsel or attorney.12 An advocate is included in the definition of "practitioner" in the Magistrates' Courts Act.13 An advocate of any division of the High Court may appear in any proceeding in any magistrates court.14 A judicial officer who is of the opinion that an advocate has been guilty of misconduct or dishonourable practice must report the fact to the branch of the society of advocates or bar council at the centre in which that advocate practises.15 Two of the members of the Rules Board are practising advocates.16 A curator ad litem appointed by the High Court is normally an advocate. A practising advocate nominated by the general council of the bar is a member of the legal aid board constituted in terms of the Legal Aid Act.17 Two practising advocates serve as members of the Magistrates' Commission.18 Advocates are frequently appointed as assessors in criminal trials in the High Court. An advocate is entitled to represent an interested party at any inquest.19 Advocates are entitled as legal advisers to assist and represent prisoners charged under the Correctional Services Act.20 In an appeal to the special income tax court constituted in terms of the Income Tax Act 21 the taxpayer is entitled to be represented by counsel.22 At an insolvency interrogation under the Insolvency Act23 any person called upon to give evidence may be assisted at his interrogation by counsel and likewise may the trustee employ counsel for the interrogation.24 An applicant for or objector to the grant of an air carrier's licence may be represented at the hearing at the council by counsel.25 At an accident enquiry board appointed in terms of the Aviation Act26 the same right of representation would apply.27 The same would apply in respect of a board of enquiry under the Civil Aviation Offences Act.28 Counsel may represent a person against whom an order may be made at an inquiry by the maintenance court in terms of the Maintenance Act.29 Counsel may represent a party appearing before the local road transportation board or national transport commission in an application under the Road Transportation Act.30 At any trial or enquiry held under the South African Police Service Act31 or its regulations in respect of a member of the force, the accused may be represented by counsel.32 In courts of marine enquiry and other courts under the Merchant Shipping Act33 legal representation is allowed.34 But a witness before a commission in terms of the Commissions Act35 is not entitled to legal representation by counsel or otherwise.36 An advocate is qualified to be a member of the law commission established in terms of the South African Law Reform Commission Act.37 Every person implicated before a board of inquiry under the Defence Act is entitled to be represented at it by counsel.38 In terms of the Justices of the Peace and Commissioners of Oaths Act39 the Minister of Justice may by notice in the Government Gazette designate the holder of any office as a commissioner of oaths for any area specified in such notice and may in like manner withdraw or amend any such notice. In terms of this section advocates in general have been designated commissioners of oaths.40 There is no express provision in the Copyright Act41 or its regulations for representation by counsel at hearings of the copyright tribunal, though it occurs in practice. A party to proceedings before the Commissioner of Patents may be represented at it by an advocate.42 Counsel may appear in proceedings before the Registrar of Copyright appointed under the Registration of Copyright in Cinematography Films Act.43 1 Staatspresident v United Democratic Front 1988 4 SA 830 (A) 856. 2 S v Memani 1994 1 SA 515 (W) 522; 1993 2 SACR 680 (W). 3 42 of 1965ss 9­12. 4 S 14(1)(a)(iv); High Court Rules r 38(3). 5 S 20. 6 Health Professions Act 56 of 1974s 42(2). 7 50 of 1978 s 29(2). 8 53 of 1974s 40(2). 9 In terms of s 39. 10 19 of 1982. 11 In terms of s 31. 12 S 32(7). 13 32 of 1944s 1. 14 S 20. 15 S 23(a). 16 Rules Board for Courts of Law Act 107 of 1985 s 3(1)(d). 17 22 of 1969 s 4. 18 Magistrates Act 90 of 1993s 3(1). 19 Inquests Act 58 of 1959s 11(2). 20 111 of 1998s 24(4). 21 58 of 1962s 83. 22 S 83(12). 23 24 of 1936. 24 S 65(6). 25 International Air Services Act 60 of 1993. 26 74 of 1962 s 12. 27 This can be inferred from s 12(3) of the Act in terms of which the laws and rules governing the magistrates' courts mutatis mutandis apply to the attendance of witnesses and their examination. 28 10 of 1972 s 2K. 29 99 of 1998s 10(3). 30 74 of 1977s 9. 31 68 of 1995. 32 Reg 61E(2): GN R427, 1 February 1992. 33 57 of 1951 ch 6 s 264 et seq. 34 This follows from the provisions of s 283 which provides that the person whose conduct is being investigated will be given a reasonable opportunity for making a defence. 35 8 of 1947. 36 Bell v Van Rensburg 1971 3 SA 693 (C). 37 19 of 1973s 3(1)(a)(ii). 38 Defence Act 42 of 2002s 102(8). 39 16 of 1963s 6. 40 Government Gazette 2351 R1429, 20 August 1976. 41 98 of 1978s 29. 42 Patents Act 57 of 1978s 19(3). 43 62 of 1977. The procedure is according to the rules governing procedure in the TPD: s 25(2). Where the registrar exercises a discretionary power, the applicant is entitled to be heard personally or by his or her agent: s 27. "Agent" is not defined, but in the definitions "advocate" is included under the definition of "legal practitioner": s 1.