Browsing: Attorneys’ admission examinations

High Court in Pretoria orders the Legal Practice Council to provide records regarding its decision to hold attorneys' admission exams only in English. Judge Elmarie van der Schyff finds that PAIA allows access to records that already exist, but does not require new explanations to be created. Court rules that the names, attendance, participation, and votes of LPC councillors involved in the language decision must be disclosed. The High Court in Pretoria has ordered the South African Legal Practice Council (LPC) to disclose records behind its decision to offer attorneys' admission examinations only in English from 2024. Judge Elmarie van der Schyff ruled in favour of Solidarity, which sought access to records explaining how the LPC reached the decision. The Information Regulator was cited as the second respondent but abided by the court's decision. The court found that the Promotion of Access to Information Act (PAIA) entitles applicants to access existing records but does not require a public or private body to create new explanations or justifications that do not already exist. Dispute centred on English-only examinations Solidarity made it clear that it was not challenging the legality of the LPC's decision to adopt English as the sole language for attorneys' admission examinations. Instead, it wanted access to documents showing how the decision was made. The union requested records of meetings, agendas, minutes and supporting documentation relating to the decision-making process, together with written reasons for the change and information about how any financial savings would be used. Judge Van der Schyff explained that the distinction between these requests was crucial because "PAIA regulates access to existing records. It does not oblige a body to create information or to formulate explanations that do not already exist in recorded form." Court rejects LPC's defence The LPC argued that the relevant decision had effectively been taken years earlier when its language policy was adopted and that it had already disclosed the complete record. Judge Van der Schyff rejected that argument. She found that regardless of whether the 2023 resolution was described as a fresh decision or merely implementation of an earlier policy, the committee meeting of 8 June 2023 and the Council meeting of 8 July 2023 had generated records that plainly fell within Solidarity's request. The judge also found that the LPC's own documents referred to committee processes for which no records had been produced. Records needed to protect constitutional rights The LPC further argued that Solidarity had failed to show why it needed the requested records. The court disagreed. Judge Van der Schyff held that Solidarity had identified the constitutional rights it sought to protect, including language rights, equality rights and the right to just administrative action on behalf of practitioners, candidate legal practitioners and students. "The records sought would afford the applicant a substantial advantage and answer a demonstrated element of need," she said. She added that the request was "tethered to a single, identified decision" and was not a fishing expedition or an attempt to use PAIA as pre-trial discovery. Existing reasons must be disclosed A significant issue before the court was whether PAIA entitled Solidarity to receive the reasons behind the decision. Judge Van der Schyff confirmed that PAIA "is an instrument of access, not of interrogation" and does not require an organisation to draft new explanations. However, she emphasised that where the reasons already exist in recorded form, they must be disclosed. "The true distinction is between compelling the creation of reasons and disclosing reasons that are already recorded," the judge said.She found that committee minutes, reports, memoranda and council records containing the reasoning behind the decision qualified as records that must be produced. Councillors' identities cannot be hidden The court also rejected the LPC's attempt to redact the names of councillors who attended meetings, participated in discussions and voted on the language resolution. The LPC argued that revealing those identities would amount to disclosing personal information. Judge Van der Schyff found otherwise. "Their attendance at a Council meeting, their participation in its deliberations and their votes on its resolutions are the very performance of their functions," she said. She further held, "To characterise the disclosure of an elected office-bearer's participation in the exercise of his or her office as an unreasonable disclosure of personal information inverts the statutory scheme." The judge concluded that the redactions were not justified and that councillors' names, attendance, participation and votes relating to the language decision must be disclosed. Committee records must also be produced Judge Van der Schyff found that the LPC had failed to account for records generated during the committee meeting on 8 June 2023, even though its own documents confirmed that the committee had discussed the matter before recommending implementation of the English-only policy. She held that silence was not enough to justify withholding records. "The full record of the committee process of 8 June 2023 ... must be produced," the judge ruled, subject only to the removal of genuinely unrelated confidential information. Disclosure order and costs Judge Van der Schyff ordered the LPC to provide Solidarity within 15 days with the unredacted council agenda and minutes relating to the language decision, attendance records, councillors' participation and voting records, committee agendas and minutes, committee reports and all supporting documents placed before the council. If any of the records cannot be found or no longer exist, the LPC must file an affidavit detailing the steps taken to locate them. The court refused Solidarity's request to compel the LPC to create new written explanations or future financial analyses, holding that PAIA does not require the creation of records that do not already exist. The LPC was ordered to pay Solidarity's costs of the application, including counsel's fees on Scale C. There was no costs order against the Information Regulator. Conviction.co.za Get your news on the go. Click here to follow the Conviction WhatsApp channel.

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