MEMORANDUM REQUIREMENTS FOR ADMISSION OF FOREIGN LAWYERS AS ATTORNEYS IN SOUTH AFRICA

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1 MEMORANDUM REQUIREMENTS FOR ADMISSION OF FOREIGN LAWYERS AS ATTORNEYS IN SOUTH AFRICA 1. There are no special exemptions or recognition of qualifications that apply in respect of persons qualified as attorneys in any country in terms of the Attorneys Act, No. 53 of 1979, other than the former TBVC States (Transkei, Bophuthatswana, Venda and Ciskei), Zimbabwe, Swaziland, Lesotho and Namibia. One should consider the important fact that the admission requirements in these countries are regulated by totally different statutes. The main requirements for admission as an attorney in South Africa are prescribed by the Attorneys Act, 1979 and inter alia include the following: 1.1 The applicant should be 21 years old; 1.2 The applicant should be a citizen or permanent resident of the RSA or of a former part of the RSA; 1.3 An LL.B degree (or B.Proc degree before 31 December 2004) obtained from a South African university (or certified degree in terms of the Act); 1.4 Two years of service under articles of clerkship with a South African firm of attorneys; or community service at a certified law clinic or office of the Legal Aid Board; one year of service if the candidate has successfully completed the full time practical law school; or an exemption in terms of the Act (appropriate legal experience); 1.5 A legal training course approved by the Law Society has to be attended and satisfactorily completed; 1.6 The successful completion of the attorneys admission examination; 1.7 The Law Society and the Court must be satisfied that the applicant is a fit and proper person to be admitted and enrolled as an attorney in the Republic. 2. An Acceptable Degree in terms of Section 2(1) is: 2.1 An LL.B degree from a university in the RSA; 2.2 A degree of a university in a country designated by the Minister and certified by a South African university on the following basis: - designation of a country by the Minister by notice in the Gazette, after consulting with the Presidents of Law Societies; - the degree must be certified by a university in South Africa (with a law faculty) as having a syllabus of instruction and a standard of training (together with a supplementary examination if required) as equivalent or superior to a South African LL.B degree. /2

2 Purpose of Designation 3.1 The designation of a country was intended to cater for the universities of Bophuthatswana, Venda and Transkei which at the time were regarded as not within South Africa. Those universities could not in turn certify degrees from other countries since they were not themselves South African universities. 3.2 Similar provisions are contained in the Admission of Advocates Act, No. 74 of These have been enforced by the High Court of South Africa (Northern Cape Division) in an unreported but fully reasoned judgment of Kgomo J in the application of A P S Nxumalo. 3.3 Persons who qualified as attorneys/solicitors in certain other countries approved by regulation, may be exempted from serving articles (Section 13(1)(a)); from obtaining a South African LL.B degree (Section 13(1)(b)) or from writing the admission examination (Section 13(1)(c)) (Namibia and Zimbabwe). 3.4 Persons who qualified in a country/territory approved by regulation, may be admitted on a limited basis in terms of Section 17 provided that persons resides and practises in such area (Lesotho and TBVC states). In practice this means that the practitioner can appear but not conduct a practice in the RSA. 4. Current Designation in terms of the Attorneys Act, Section 2 of the Act CURRENT DESIGNATION Section 2(1)(aB) certification of law degree TBVC States, Swaziland (refer Government Gazette No of 28 February 2003), Zimbabwe (refer Government Gazette No of 18 March 1988 and also page 2-9(1) of Practice Manual) and Namibia (refer Government Gazette No of 29 September 2003) Section 2(1)(aB) reads as follows: Duration of service under articles- (1) Any person intending to be admitted as an attorney, shall serve under articles of clerkship for a period of- (ab) two years after he has satisfied all the requirements for a degree or degrees of a university in a country which may be designated by the Minister, after consultation with the Presidents of the various Law Societies, by notice in the Gazette and in respect of which a university in the Republic with a faculty of law, has certified that the syllabus of instruction and the standard of training thereof, together with a supplementary examination (if any) required by the latter university, the requirements of which have been satisfied by that person, are equivalent or superior to those required for the degree referred to in paragraph (a); /3

3 Section 13: Exemption Further Requirements CURRENT DESIGNATION Section 13(1) and 13(1)(a)(ii) Zimbabwe / Namibia (Regulation 1A) Class designated: Five years practice (or without: Three years as a Professional Assistant in South Africa Section 13A) Exempted from articles of clerkship) Section 13(1)(b) certification of law degree Section 13(1)(c) by regulation: exempted from the attorneys admission examination Namibia Section 13(1)(a)(i) & (ii) Class designated: Contract registered before 21/03/1990 and examination completed or admitted in Namibia after 28 February Exempted from articles of clerkship and training course - in terms of Section 15(i)(b)(ivA) Zimbabwe Regulation 7A If designated in terms of Section 13 examination passed before 22 May 1981 then exempted from examination. Section 13 reads as follows: Exemption from service under articles and certain examinations, and powers of court in respect of irregular service and certain other service- (1) Any person lawfully admitted to the Republic for permanent residence therein who is ordinarily resident in the Republic and who has been admitted and enrolled as a solicitor or attorney of the Supreme or High Court of any country or territory which has been approved for the purposes of this subsection by regulation made under Section 81(1)(a)- (a) shall- (i) if he has practised for at leased five years as a solicitor or an attorney, as the case may be, in the country or territory in which he has been so admitted and enrolled and belongs to a class of persons (if any) which has been designated by any such regulation; or /4

4 - 4 - (ii) if the country or territory referred to has been designated for the purposes of this subparagraph by regulation made under Section 81(1)(a), without his having practised as contemplated in subparagraph (i), and if he belongs to a class of persons (if any), which has been designated by any such regulation, be exempted from service under articles; [Para.(a) substituted by S.2 of Act No. 76 of 1980 and by S.1 of Act No. 60 of 1982.] (b) shall, if a university in South Africa which has a law faculty, has certified that an examination which he or she has passed in any country or territory is, in so far as it relates to the syllabus of instruction and the standard of training, together with a supplementary examination (if any) required by that university, the requirements of which have been satisfied by that person, equivalent or superior to the examination which is required for the degree mentioned in Section 2(1)(a) be exempted from satisfying the requirements for the degree mentioned in the said Section 2(1)(a); [Para. (b) substituted by S.2 of Act No. 56 of 1983, by S.6(a) of Act No. 108 of 1984 and by S.8(a) of Act No. 78 of 1997.] (c) may, by regulation made under Section 81(1)(c), be exempted from the requirement to pass any examination referred to in Section 14(1)(a), (b) or (c) or any part thereof. [Sub-s. (1) amended by S.2 of Act No. 76 of 1980.] 13A. Certain attorneys must comply with certain conditions before being entitled to practise on their own account- Any person contemplated in Section 13(1)(a)(ii) who has been admitted and enrolled as an attorney in terms of this Act, shall not be entitled to practise that profession on his own account, unless he has after his admission and enrolment, practised for a period of not less than three years on such conditions as may be determined by regulation made under Section 81(1)(j). [S.13A inserted by S.3 of Act No. 76 of 1980.] 6. Designation in terms of Section 17: Cross Border Practising CURRENT DESIGNATION Section 17 TBVC States and Lesotho Section 17 provides for the designation of countries for the purpose of cross border practising, in particular as far as categories of persons are concerned. Very few practitioners from designated countries are making use of this procedure. /5

5 - 5 - Practitioners who obtained practising rights in South Africa in terms of Section 17, only remain so entitled while they practise in their own countries. They are not permitted to open a practice in South Africa. Section 17 reads as follows: Admission of attorneys practising in certain countries or territories Notwithstanding the provisions of this Act, but subject to the provisions of Section 19, any person admitted and enrolled as a solicitor or an attorney of the Supreme or High Court of any country or territory approved for the purposes of this Section by regulation made under Section 81(1)(a), may be admitted and enrolled by the Court as an attorney in the Republic upon satisfying the Court that he- (a) (b) has been admitted and enrolled as a solicitor or an attorney of that Supreme or High Court, and that no proceedings are pending to have him struck off the roll of solicitors or attorneys or suspended from practice; is resident and practising as a solicitor or an attorney in the country or territory in which he has been so admitted and enrolled; (ba) belongs to a class of persons (if any) which has been designated by regulation made under Section 81(1)(a); and (c) is a fit and proper person to be admitted and enrolled as an attorney in the Republic. 7. Foreign Firms Practising in South Africa Foreign firms who open offices in South Africa must comply with immigration law. They are not practising as attorneys or solicitors but as legal consultants. In this regard, they do not contravene the Attorneys Act, unless they would hold themselves out as attorneys. They practise foreign law and are not subject to discipline by the local Law Society. Foreign practitioners do not have the right of appearance in South Africa. The firms may not practise in association with South African firms but they may employ South Africans. In the case of local legal proceedings, they must instruct a South African firm. The intention was for Law Societies to keep a list of foreign firms who are practising within their jurisdictions, however this has not developed into any meaningful record of foreign firms. *** A memorandum by attorney Philip Botha for the LSNP is attached as annexure A. /6

6 Recommendations and Conclusion The Committee tasked with this matter, submitted the following recommendations to the LSSA: 1. That designation in terms of Sections 2 and 13 be supported, subject to paragraph Designation in terms of Section 13 must be subject to the following conditions: (a) (b) A practitioner from the designated country who has practised for longer than five years, will be exempted from articles in South Africa but must still complete the prescribed vocational training period and the admission examination successfully. A practitioner with less than five years experience will be exempted from articles but may not practise for own account for a period of three years. Successful completion of the prescribed vocational training and the admission examination applies in this case as well. With regard to both above categories, the requirement of a certified law degree remains a pre-requisite and the applicant must show that he/she is a fit and proper person and either a South African citizen or permanently resident in South Africa. 3. Reciprocity must apply in all cases of designation in terms of Sections 2 and The Committee made no recommendation with regard to Section 17. It provides for cross border practising if required. Any further designation must be subject to reciprocity. 5. Developments pertaining to GATS must be monitored as far as it may impact on practice rights for foreigners and the principle of reciprocity. 6. The LSSA should commence with a process to develop the structure of and procedure and criteria for a panel in terms of the new Act. It is suggested that the model that was created in terms of the Foreign Qualifications Act, 1993, be used as reference and this is already provided for in the new Legal Practice Act. M J S GROBLER Director 9 February 2010