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REPUBLIC OF SOUTH AFRICA
| 1.1 | Current position |
| 1.1.1 | Classification of Lawyers and Requirements for the Practice of Law South Africa has a divided profession, comprising attorneys and advocates. The attorney is the person whom one first contacts when seeking legal advice or if one has a legal problem. Thus, an attorney*s services should be broad enough to cover a wide range of legal problems. There are approximately 13 000 practising attorneys. Attorneys refer clients to advocates as they have expertise in various areas of the law, especially the presentation of cases in court. This requires a mastery of law and fact, good judgment and the ability to present a case clearly and coherently. Advocates also give legal opinions and help with the drafting of legal documents. |
| 1.1.2 | Bar Associations and Law Societies All attorneys are required to be members of the statutory provincial law societies of the province in which they practice. The purpose of the Law Societies is to maintain and enhance the prestige, status and dignity of the attorneys' profession and to regulate the exercise of the profession. In addition, the Law Societies encourage and promote efficiency and responsibility amongst attorneys and are the custodians of the integrity and ethical standards of the profession. Where necessary, a Law Society will discipline a member who has transgressed the ethical or other rules of the attorneys' profession. The Law Society of South Africa (LSSA) is a voluntary association, established by the statutory provincial law societies, the Black Lawyers Association and the National Association of Democratic Lawyers. The Law Society of South Africa publishes the attorneys journal, De Rebus and runs the Continuing Legal Education, Practical Legal Training and Professional Affairs departments. Advocates are organized into societies in the major centres, known historically as "Bars." A Bar is a fraternity of persons who practice as advocates in the place where the Bar is situated. The purpose of the Bar is to maintain professional standards and conduct among practising advocates, as well as to enforce discipline amongst its members. It also provides training for aspiring advocates at the beginning of their careers. The Bar enforces a strict code of ethical conduct and professional integrity to which advocates are required to adhere. The various Bars are constituent members of the General Council of the Bar of South Africa. |
| 1.2 | New dispensation The South African Department of Justice and various stakeholders are working together in finalising a new legal practice bill for the country, by the end of October 2001. Transformation in the legal profession will be taken a step further with provision to be made for one regulating Act and a governing body as far as the referral, non-referral professions and the para-legal sector are concerned. Disciplinary matters will be dealt with by the legal practice council and an ombud. It is foreseen that the members of the council will be nominated by the professional bodies whereafter appointment will take place by the Minister of Justice. |
| 2.1 | Attorneys and advocates Only one academic qualification is presently recognized for admission as an attorney. To qualify as an attorney, the minimum qualification is the LLB degree which takes at least four years of study. In addition to obtaining the degree, the Attorneys Act No. 53 of 1979 requires that a prospective attorney serves as a candidate attorney at a law firm or legal aid clinic, attend a practical legal training course recognized by a statutory law society and pass the attorneys admission examination. In order to become a member of a Bar as an advocate, a person must obtain a LLB and serve an apprenticeship (called a pupillage) of five months in the chambers of a member of the Bar who has some years of experience and undergo training provided by the Bar. In addition, a pupil must pass the national bar examination of the General Council of the Bar, which is a test of his or her practical ability. The legal practice bill will prescribe new minimum post graduate requirements for qualification as a legal practitioner: a twelve months period of vocational training comprising a structured training course and a period of workplace experience. |
| 2.2 | JUSTICE COLLEGE This institution, with the status of a Chief Directorate within the Department of Justice and Constitutional Development, provides practical legal training primarily to Court Officials in the employ of the Department. These officials include Magistrates, Prosecutors, Masters of the High Court, Clerks of the Court, State Attorneys, Interpreters, Registrars, etc. The training is of a professional nature. The immediate objective is to enhance the skills, knowledge and attitude of the occupational groups, thus enabling the Court to run effectively and efficiently. The training programmes further take into account the level of experience and expertise of participants, hence the fact that Justice College provides basic, intermediate and advanced courses. There are also compulsory courses for Aspirant Magistrates (8 weeks in duration) and Aspirant Prosecutors (6 months). These are done under the auspices of the Magistrates Commission and the National Prosecuting Authority respectively. At the end of their training at Justice College the candidates are required to pass a written examination. |
| A) | Constitutional Court The Constitutional Court consists of a President, a Deputy President and nine other judges. A matter before the Court must be heard by at least eight judges, but in practice all eleven judges hear every case. The Constitutional Court is the highest court in all constitutional matters. A constitutional matter includes any issue involving the interpretation, protection, or enforcement of the Constitution. This Court may decide only constitutional matters, and issues connected with decisions on constitutional matters. It also makes the final decision as to whether the situation is a constitutional matter or whether an issue is connected with a decision on a constitutional matter. Certain issues fall within the exclusive jurisdiction of the Constitutional Court. These issues include disputes between organs of state in the national or provincial sphere concerning the constitutional status, powers or functions of any of those organs of state; the constitutionality of any parliamentary or provincial bill- but only in the circumstances anticipated under the Constitution; applications envisaged in the Constitution; the constitutionality of any amendment of the Constitution, whether Parliament or the President has failed to fulfill a constitutional obligation; or whether to certify a provincial constitution. Besides these matters, the Constitutional Court makes the final decision as to whether an Act of Parliament, a provincial Act or conduct of the President is constitutional. With respect to the other Courts, the Constitutional Court must confirm any order of invalidity of legislation made by the Supreme Court of Appeal, a High Court, or a court of similar status, before that order has any force. With respect to individuals, a person, when it is in the interests of justice and with leave of the Constitutional Court, must be allowed to bring a matter directly to the Court or to appeal directly to the Court from any other court. |
| B) | Supreme Court of Appeal The Supreme Court of Appeal consists of a Chief Justice, a Deputy Chief Justice and the number of judges of appeal determined by an Act of Parliament. Matters before the Supreme Court of Appeal are decided by the number of judges determined by an Act of Parliament. This court may decide appeals in any matter. It is the highest court of appeal except in constitutional matters, and may decide only appeals, issues connected with appeals, and any other matter that may be referred to it in circumstances defined by an Act of Parliament. |
| C) | High Courts Generally, a High Court may decide any matter, including a constitutional matter. However, a High Court may not decide matters that may be decided only by the Constitutional Court, matters assigned by an Act of Parliament to another court of a status similar to a High Court, or any other matter not assigned to another court by an Act of Parliament. |
| D) | The Labour Court The Labour Court is a Court of the same status as a High Court. It has exclusive jurisdiction in all matters where such jurisdiction has been conferred upon it by the Labour Relations Act, 1995, and any other legislation. Appeals from the Labour Court lie to the Labour Appeal Court, which is the highest court in labour matters. However, an appeal would lie from the Labour Appeal Court to the Constitutional Court in respect of a matter with constitutional implications. |
| E) | The Land Claims Court The Land Claims Court was established by the Restitution of Land Rights Act, 1994. The Land Claims Court is a Court of the same status as a High Court and has exclusive jurisdiction various claims and other matters under the Restitution of Land Rights Act, the Land Reform (Labour Tenants) Act, 1996 and the Extension of Security of Tenure Act, 1997. The Land Claims Court also has limited powers of appeal and review in respect of certain decisions of magistrates' courts. Appeals from the Land Claims Court lie to the Supreme Court of Appeal. |
| F) | Lower Courts Magistrates Courts and all other courts may decide any matter determined by an Act of Parliament. However, a court that is of lower status than a High Court may not inquire into or rule on the constitutionality of any legislation or conduct of the President. |
| G) | Judicial Service Commission The Judicial Service Commission consists of the Chief Justice, the President of the Constitutional Court, one Judge President, the Minister of Justice, two practising advocates, two practising attorneys, one teacher of law, six persons of the National Assembly, four permanent delegates to the National Council of Provinces, and four persons designated by the President as head of the national executive. When matters specifically relating to a provincial or local division of the High Court are being considered, the Commission also consists of the Judge President of that division and the Premier of the province concerned. The Commission advises the national government on any matter concerning the judiciary or the administration of justice. When the Commission considers any matter other than the appointment of a judge, it must sit without the six persons designated by the National Assembly and the four permanent delegates to the National Council of Provinces. |
| H) | National Prosecuting Authority There is a single national prosecuting authority in the Republic consisting of a National Director of Public Prosecutions, Directors of Public Prosecutions and prosecutors. The prosecuting authority holds the power to institute criminal proceedings on behalf of the state, and carry out any necessary functions incidental to instituting criminal proceedings, without fear, favour, or prejudice. The National Director of Public Prosecutions must determine prosecution policy, issue policy directives, may intervene in the prosecution process, and may review a decision to prosecute or not to prosecute. The Minister of Justice exercises final responsibility over the prosecuting authority. |
"Our country has reached a stage in its national development when its existing law can better be described as South African than Roman Dutch... No doubt its roots are Roman Dutch, and splendid roots they are.This process of developing a uniquely South African system of law and of borrowing from the best that other systems have to offer has accelerated since 1994. In terms of the South African Constitution, South African Courts are enjoined to promote the spirit, purport and objects of the Bill of Rights when interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum. When interpreting the Bill of Rights, in turn, the courts are required to consider international law. In recent times, our courts have not hesitated to look to the jurisprudence of other jurisdictions for solutions to particular problems.
But continuous development has come through adaptation to modern conditions, through case law, through statutes, and through adoption of certain principles and features of English law, such as procedure, and the law of evidence. The original sources of the Roman-Dutch law are important, but exclusive preoccupation with them is like trying to return an oak tree to its acorn. It is looking ever backwards. Lot's wife looked back. Our national jurisprudence moves forward where necessary, laying aside its swaddling clothes."