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Challenge to Legal Practice Act exclusion of BProc graduates

- Lee-Anne Bruce

CALS represents two individuals seeking to challenge the bar against BProc graduates from being admitted as attorneys

[UPDATE: CALS and the LPC have reached an agreement and provided the Court with a draft order for consideration. Judge Van der Schyff has reserved judgment in the matter to consider the order]

On 1 March 2022, the High Court in Pretoria is set to hear an application challenging parts of the Legal Practice Act which prevent BProc graduates from being admitted as attorneys. The Centre for Applied Legal Studies represents two individuals who argue this infringes on their rights to equality, education and freedom of trade, occupation and profession.

In May 2019, Ms Gabaikangwe Thendele and Mr Zwelibanzi Thendele successfully applied to law firms to begin practical vocational training (previously known as “articles of clerkship”) on their journey to becoming admitted attorneys. Unfortunately, when they tried to register their contracts with the Legal Practice Council, they were informed that they did not qualify for registration. The Legal Practice Act, which governs the legal profession, now requires all candidate legal practitioners hold an LLB degree and not a BProc degree. Ms and Mr Thendele approached the Centre for Applied Legal Studies (CALS) for assistance.

The BProc degree was a four-year undergraduate degree specifically designed for those who sought to practice as attorneys. The BProc was perceived as “inferior” to the LLB degree, since the LLB was originally offered as a postgraduate qualification at historically White institutions. Economic disparities and racist apartheid education policies meant that the LLB degree was closed to most aspirant Black lawyers, who instead completed BProc degrees. The BProc has subsequently been phased out of the South African education system, but in the early 2000s an estimated 1,177 people graduated with a BProc and may still wish to become attorneys.

The preamble of the Legal Practice Act sets out that its purpose is to provide a framework for transforming the legal profession and ensuring the profession reflects the diversity and demographics of the country. Yet, this stated purpose is in conflict with section 26(1) which specifies that a person may only be admitted and enrolled as a legal practitioner if they have met all the requirements for an LLB degree. This discriminates against those who, like Ms and Mr Thendele, completed a BProc and seek to fulfil their lifelong efforts to become attorneys.

On behalf of Ms and Mr Thendele, CALS therefore engaged with the Legal Practice Council and the Minister of Justice. We received a positive response from the Minister recognising this discrimination and undertaking to amend the Act to allow qualifying BProc graduates to be admitted as attorneys. Unfortunately, in spite of this, the Legal Practice Council has maintained its position that it is bound by the Act as it stands and that the matter would have to be determined by a court.

CALS therefore approached the High Court in Pretoria. The matter is set to be heard on 1 March 2022 from 10:00. We argue that section 26(1) infringes on the right to equality in that it disproportionately impacts on Black graduates, the right to education and the right to freedom of trade, occupation and profession.

“We are in a situation where the Legal Practice Act is perpetuating the very prejudice it seeks to erase,” says Thandeka Kathi, attorney at CALS. “The limitations imposed by section 26(1) can only be interpreted as arbitrary and irrational since it contradicts the very purpose of the Act itself to transform the legal profession. We are asking the Court to declare this unconstitutional and invalid to the extent that the Act excludes BProc graduates and limits entry to the profession.”

CALS is represented by in-house counsel Amelia Rawháni-Mosalakae and external counsel Nomonde Nyembe, both of whom appeared before Judge Elmarie van der Schyff. 

The matter is set to be heard virtually by the Pretoria High Court on 1 March 2022 from 10:00.

Read our heads of argument in the matter here.

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