Judgment that could streamline practiceComment on this story
IMPORTANT news here for lawyers – and attorneys with the right to appear in the higher courts should pay special attention. A new judgment, disguised under a dispute between Liberty Group and two brokers, slices through reams of red tape and could simplify practice.
When Liberty asked for summary judgment against brokers Roychand and Reetha Devi Singh, the two objected to the action on the grounds that the company’s paperwork was faulty: they claimed the documentation was signed by an attorney not legally empowered to do so.
Judge Kevin Swain, sitting in the high court in Durban , took this as an opportunity to write a decision re-examining the law on the issue.
The outcome, delivered last month, was a judgment fundamentally changing the rules about the protocol involved when an attorney wants to appear in another high court division.
Up to now judges have held that an attorney admitted to appear in the high court of, say, Gauteng, must apply for an appearance certificate to the registrars of each additional high court where he or she wants to appear.
Argument during the Liberty case highlighted the lack of logic, the inconsistencies and the difficulties posed as a result of these earlier high court decisions.
Let’s take just one example.
Say you are admitted to appear in the KwaZulu-Natal High Court. You would then automatically have the right, without any further formality, to appear in both the Supreme Court of Appeal and the Constitutional Court.
But if you need to argue in the Western Cape High Court, you would first have to apply to the registrar of that court.
Judge Swain said he disagreed with the earlier judgments that had resulted in these anomalies, including a decision by a judge president of his own division, the late Judge Vuka Tshabalala.
These previous decisions, said Judge Swain, focused too much on the aspect of “control” and too little on the extension of rights that Parliament had intended to create when it passed the Right of Appearance Act.
Past judgments had defeated the purpose of the act by “over-emphasising the regulation of the appearance of attorneys in the high court, without according sufficient weight to the object of extending such right of appearance”.
Judge Swain’s view was that the need for “control” was satisfied when the secretary of the law society of which the attorney concerned was a member issued a certificate saying she or he met the conditions stipulated in the law and that there were no pending proceedings to strike the lawyer’s name from the roll.
And if an attorney was struck from the roll, the registrar of the court concerned was obliged to forward a copy of this order to the registrars of other courts: in this way, all courts would know that the attorney was no longer in good standing.
What about the other functions of an advocate (apart from appearing in court) involved when an attorney obtains appearance rights? Again, other judges had earlier held that an attorney needed separate permission from each high court division where the attorney wanted to exercise an advocate’s functions – like signing certain preliminary court papers, for example.
Attorneys sign certain papers in their capacity as attorneys; Judge Swain said when attorneys signed in this capacity, they could only do so in the division where they were admitted as attorneys. Those with high court appearance rights, on the other hand, could sign as an advocate in other divisions since this was one of the “functions of an advocate” associated with appearance rights.
In the Liberty case the attorney involved had been granted high court appearance rights but had not been enrolled to practise as an attorney outside his “home” division.
That meant he was not entitled to sign as an attorney elsewhere other than in Gauteng. On the other hand, if he had appearance rights he could legally sign in other divisions when he was exercising the functions of an advocate.
It’s still too soon to know if this decision will be accepted in other divisions, but it will be authority to quote if you want to take the risk.
One warning: exercise caution in the Free State, where there’s a full Bench decision going the other way. You could see this as a battle over slogans; if the Swain view prefers “a certificate for one is a certificate for all”; the Free State backs “one court, one certificate”.