PAPER FOR
PRIVATE MEMBERS LEGISLATIVE PROPOSALS AND PETITIONS COMMITTEE

ADMISSION OF ADVOCATES AMENDMENT BILL
Proposed by
MR H C SCHMIDT MP

The issue
The intention behind the proposed amendment to the Admission of Advocates Act No 74 of 1964 is to allow a situation where a person who practised as an advocate in a country designated as such by the Minister of Justice and Constitutional Affairs who then moves to live in South Africa and is not otherwise qualified for admission as an advocate can practice as an advocate based on his experience of practice in that designated country.

Existing Law
The Admission of Advocates Act presently requires a person who wishes to be admitted as an advocate to

1. be over the age of 21 years
2. be a fit and proper person
3. be duly qualified
4. be a citizen or lawfully admitted for permanent residence
5. be permanently resident in the Republic; and
6. in the case of a person who has been an attorney must have had his or her name removed from the roll of attorneys on his or her own application.

To be duly qualified the person must have:

1. a law degree granted by a university in South Africa after five years of study;
2. a degree from another country designated by the Minister which a university in South Africa certifies is equal to or superior to a law degree of a university in South Africa.

1. that he has been admitted as an advocate of the Supreme or High Court of any country or territory outside the Republic which the Minister has for the purposes of this section designated by notice in the Gazette (in this Act referred to as a designated country or territory);
2. that he resides and practises as an advocate in the designated country or territory in which be has been so admitted;
3. that he is a fit and proper person to be so admitted; and
4. that no proceedings are pending or contemplated to have him suspended from practice or to have him struck off the roll of advocates of the said Supreme or High Court.

(2) Any person who is admitted and authorized to practise and to be enrolled as an advocate in terms of subsection (1) shall be enrolled as an advocate on the roll of advocates.

(3) Any notice published in the Gazette under subsection (I) whereby any country or territory has been designated for the purposes of this section may at any time be withdrawn by the Minster by a subsequent notice in the Gazette and thereupon any country, or territory referred to in such first mentioned notice shall cease to be a designated country or territory.

In terms of this section, a person who practised as an advocate in a designated country by the Minister (regardless of his educational qualifications) is entitled to be admitted as an advocate and to practice as such anywhere in South Africa. To qualify under this provision the advocate most be resident in the designated country. He or she does not have to be a citizen of South Africa, nor indeed a citizen of the designated country. He or she does not have to maintain a place of business in South Africa.

However, once that advocate ceases to be permanently resident in a designated country, and irrespective of where he or she moves, he or she has to have his or her name removed from the roll of advocates. Therefore, if he or she decides to emigrate to South Africa, the right of practice in South Africa is lost. Section 7(c) reads:

c) in the case of a person who was admitted to practise as an advocate in terms of section five, if it appears to the court that he has ceased to reside or to practise as an advocate in the designated country or territory in which he resided and practised at the time of his admission to practise as an advocate of the Supreme Court or that that country or territory has ceased to be a designated country or territory for the purposes of the said section.

THE ANOMALY

The current law creates an anomaly that a person, who is not resident in South Africa and does not have a South African law degree, can practice as an advocate in South Africa so long as he or she remains resident in any country that is designated for that purpose by the Minister of Justice. Clearly that person is considered good enough to practice as an advocate based solely on the fact of his or her residence and practice in a designated country. Clearly the Minister of Justice will not designate a country unless she is satisfied that those who practice as advocates in countries to be designated have the same standards of ethics and training as advocates in South Africa.

However, when that same person comes to South Africa he or she is not entitled to practice as an advocate even though he or she receives permanent residence in this country. But nothing has changed as to his or her ability or ethics. All that has changed is the country of residence. The skills that he or she could exercise whilst living elsewhere, and the services he or she could provide to people in South Africa by virtue of being an advocate, are no longer available simply on the grounds of change of the country of residence from a designated country to South Africa. His or her academic qualifications remain the same, but unless he or she has a South African law degree he or she is not entitled to admission as an advocate.

THE SOLUTION

The solution proposed in the Admission of Advocates Amendment Bill is to retain the existing concept of designation by the Minister of Justice. It is considered that this is an important criteria. The policy has already been adopted by Parliament of giving the right to the Minister of Justice to designate countries. All that is intended in the present proposal is to retain that parliamentary procedure, but to extend the benefits that accrue under it.

Thus, what is proposed is that a person who has practised as an advocate in a country designated by the Minister of Justice and who obtains permanent residence in South Africa will be able to practice as an advocate in South Africa provided he or she meets a number of criteria. These are:

1. that he or she practised as an advocate iii a country designated by the Minister of Justice;
2. that he or she remains in good standing with whatever organization is responsible for the practice of advocates in that designated country;
3. that he or she practised in that designated country for a minimum of a specified period:
4. that he or she has lawfully obtained permanent residence in South Africa.

In effect, the proposal merely extends to advocates who come from a designated country, but who obtain residence in South Africa, the rights to practice as an advocate which they had or could have exercised whilst still being resident in a designated country.

Some control over the period of practice is clearly desirable. The proposal mentions a period of fifteen years. This might be too restrictive. But it is suggested that the need for a stipulated period of practice is essential so that persons do not simply obtain admission as an advocate in a designated country and then immediately relocate to South Africa.

Citizenship is not a criteria. Citizenship is not a requirement as an admission as an advocate in South Africa, merely ordinary residence. In addition, the requirements of age and good standing remain in place.

CONTROL BY MINISTER

The proposal put forward to the Committee is premised on the overall control of the Minister of Justice. The Minister will have to make a policy decision in respect of any application to have a particular country designated for the purposes of the Admission of Advocates Act. This will enable the Minister on a case by case basis to decide whether or not to extend the privileges of admission as an advocate to countries other than Nigeria and Zimbabwe. This will prevent any abuse of the provision and will ensure that the provision can only be utilised by persons who come from a country which meets the criteria of comity and other considerations which the Minister considers appropriate to the decision of whether or not to designate a country

THE EFFECT
Even if the experience criteria is reduced from fifteen years to something considerably less, it seems unlikely that the provision will lead to a vast number of applications for admission as an advocate. The proposal was motivated by and on behalf of Advocate Adrian de Bourbon from Zimbabwe who has practised as such in Zimbabwe in excess of thirty years, and has been a senior counsel in that country for over 20 years. However, the provision will enable younger lawyers from Nigeria, Zimbabwe and other designated countries to also make application to practice as an advocate in South Africa.

The Committee is respectfully urged to support the proposed amendment.