Protecting the foundation and magnificent edifice of the legal profession: reflections on



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PROTECTING THE FOUNDATION AND MAGNIFICENT EDIFICE OF THE LEGAL PROFESSION: REFLECTIONS ON THUKWANE v LAW SOCIETY OF THE NORTHERN PROVINCES 2014 5 SA 513 (GP) AND MTSHABE v LAW SOCIETY OF THE CAPE OF GOOD HOPE 2014 5 SA 376 (ECM)

TC Maloka*

1 Introduction

The law reports are replete with cases involving applications for admission and enrolment in the roll of attorneys, removal from the roll, counter-applications challenging striking-off, and for readmission and enrolment. In each of these instances the critical issue is whether an applicant is a "fit and proper person" to be admitted or, in the case of an errant practitioner, whether he or she is still a "fit and proper person" to remain on the roll of attorneys. However, the threshold for being considered a "fit and proper person" is much higher than otherwise in proceedings for readmission and reenrolment. Put differently, the additional question to be answered in an application for re-admission is whether there has been a genuine, complete and permanent reformation on the part of the disbarred practitioner.

While the battle between the law societies or bar councils and disbarred practitioners over readmission and reenrolment is a perennial feature on the rolls of many divisions of the High Court,1 the issue that had to be determined by Rabie J in Thukwane v Law Society of the Northern Provinces2 and Goosen J in Mtshabe v Law Society of the Cape of Good Hope3 respectively was different. It concerned a novel issue of whether a person previously convicted of a criminal offence and who was still serving a sentence in the sense of being a parolee could be admitted or re-admitted. Thukwane and Mtshabe engage important and interrelated issues demanding definitive and systematic consideration.

Foremost is the term "fit and proper person". While it is not defined either in the Attorneys Act 53 of 1979 or the Advocates Act 74 of 1964, in Oliver Wendell Holmes' irony-tipped phrase, it casts a "brooding omnipresence"4 over entry into the profession and throughout a legal practitioner's life. The second is the controversial question whether, and to what extent, a parolee can be considered a "fit and proper person" to be admitted and enrolled. The third issue is whether the law society can create a legitimate expectation that the parolee would enter the legal profession inter alia by permitting the parolee to attend the School for Legal Practice and to write the attorneys' admission examination. Lastly there is the troubling issue concerning the duty of the relevant law society, as custos morum of the profession,5 in fulfilling its statutory responsibility as an interested party in proceedings concerning the re-admission and reenrolment of a parolee. Granted that in the specific context of Mtshabe the law society did not oppose the re-admission of the applicant. That does not necessarily mean that it was persuaded that the applicant is a "fit and proper person" to be re-admitted as an attorney despite the applicant's being a parolee.




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