- A Pretoria judge has struck down as unconstitutional the law that forced attorneys to wait three years before appearing in higher courts.
- The court called the restriction irrational since it was based only on the passage of time.
- The declaration of invalidity will go to the Constitutional Court for confirmation.
A Pretoria judge has found that the section of the Legal Practice Act preventing attorneys from appearing in the High Court, Supreme Court of Appeal, and Constitutional Court for three years after admission is unconstitutional and invalid.
Judge N Davis found that Section 25(3)(a) of the Legal Practice Act unfairly singled out attorneys and that this distinction unjustifiably limited their constitutional rights. The judgment emphasised that both attorneys and advocates should be treated equally after admission.
This case began when attorney Kgomotso Ramalepe and Marweshe Attorneys challenged the law. They brought the case against the Minister of Justice and Constitutional Development, the Legal Practice Council, and the Black Lawyers Association.
Ramalepe, who was admitted as a legal practitioner on 10 June 2025, found herself barred from higher courts while advocates admitted on the same day automatically received rights of appearance.
The law required attorneys to wait three years unless they completed a recognised trial advocacy programme. Judge Davis found that this distinction had no rational basis.
He wrote, “As far as the right of appearance of legal practitioners admitted in terms of the LPA are concerned, section 25 differentiates between advocates and attorneys.”
Court finds waiting period irrational
The court highlighted that the three-year waiting period was not linked to compulsory training, practical experience, or any assessment of competence. Judge Davis remarked, “The three-year period is prescribed as simply a function of the passage of time.”
The judgment noted that an attorney could spend the entire three years without any advocacy experience and still qualify automatically afterward. Judge Davis wrote that an attorney could “languish at home” during this time and still gain the right to appear in the Constitutional Court.
The court concluded that the restriction had no rational connection to competence and therefore infringed on attorneys’ constitutional rights to equality, dignity, and professional freedom. Judge Davis stated, “This clearly impacts the dignity of attorneys.”
He also referred to the exclusion of attorneys from what he described as the “proverbially talk where the adults talk.”
Minister’s argument rejected
The Minister argued the matter was unnecessary since Parliament was considering amending the law. Judge Davis rejected this, explaining that the law remains in effect until it is formally repealed. The court also noted that the Minister had referred to the current situation as an “unsatisfactory state of affairs.”
Judge Davis declared Section 25(3)(a) unconstitutional and sent the declaration to the Constitutional Court for confirmation. The Minister was ordered to pay the applicants’ legal costs.
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