Hutchinson Wild v Legal Practice Council & Others

The appellant, Ms Jennifer Emily Hutchinson Wild, has been a practicing advocate for 42 years and is a member of the Bisho Society of Advocates (BSA). On 26 September 2017, the Eastern Cape Society of Advocates (ECSA) instituted a striking-off application against Ms Wild in the Eastern Cape Division of the High Court, Grahamstown, based on alleged misconduct arising from three judgments. On 10 January 2018, Ms Wild applied to review the ECSA's decision to institute the striking-off application. On 1 November 2018, the Legal Practice Act 28 of 2014 (LPA) came into effect, establishing the Legal Practice Council (LPC) as a body corporate with jurisdiction over all legal practitioners. On 18 April 2019, the LPC chairperson issued an 'advisory note' to all advocates regarding transitional arrangements for pending striking-off applications. The advisory note stated that striking-off applications instituted before 1 November 2018 should be completed by the applicable Bar Council/Society at their own costs, with accreditation from the LPC. Ms Wild sought to review and set aside the decision to issue the advisory note, alternatively seeking a declaration that the LPC did not take any decision recorded in it.

• Whether the decision to issue the advisory note constitutes reviewable administrative action under the Promotion of Administrative Justice Act 3 of 2000 (PAJA)
• Whether the advisory note adversely affects Ms Wild's rights and has a direct, external legal effect
• The proper interpretation of section 116(2) of the Legal Practice Act 28 of 2014
• Whether Advocates' Societies retained their standing and right to continue with striking-off applications instituted prior to the LPA coming into effect
• Whether the LPC has exclusive jurisdiction over disciplinary proceedings involving advocates or whether Advocates' Societies retain their common-law standing

The appeal was dismissed with costs including the costs of two counsel.

The binding legal principles established are: (1) An advisory note that merely restates and explains how a transition to a new legislative dispensation is to be carried out, preserving the status quo, does not constitute administrative action reviewable under PAJA as it does not adversely affect rights nor have a direct, external legal effect; (2) The Legal Practice Act 28 of 2014 does not alter the common-law right of courts to enquire into the conduct of advocates; (3) The LPA does not alter the common-law standing of Advocates' Societies to investigate unprofessional conduct and bring applications for suspension or removal of advocates from the roll; (4) Section 44(2) of the LPA preserves the right of any person with locus standi, including Advocates' Societies, to apply to the High Court for appropriate relief in connection with complaints against legal practitioners; (5) The standing of Advocates' Societies to bring disciplinary matters does not depend on section 7(2) of the repealed Admission of Advocates Act but arises from the common-law and the inherent jurisdiction of the courts; (6) While the LPC is the primary regulator of the legal profession, it is not the exclusive custos morum - Advocates' Societies remain co-custodians of the advocates' profession; (7) Statutory provisions must be interpreted not in isolation but in conjunction with the entire Act, having regard to text, context, purpose and constitutional alignment.

The Court noted that had there been an intention to change the common-law position regarding the inherent powers of courts over legal practitioners, this would have been expressly stated in the LPA. The Court also observed that there was a dispute between the LPC and Advocates' Societies regarding how continuation of pending applications should be achieved - the LPC's view being through accreditation and delegation, while Advocates' Societies contended they could continue without such accreditation. The Court did not need to resolve this particular dispute for the purposes of the appeal. The Court also noted, without deciding, the dispute about whether the advisory note had legal status as a formal decision or merely constituted an advisory opinion, proceeding on the assumption that a decision had been taken for purposes of analyzing reviewability under PAJA.

This case is significant in South African law for clarifying the regulatory framework established by the Legal Practice Act 28 of 2014. It establishes that while the LPC is the primary regulator of the legal profession, it does not have exclusive jurisdiction over disciplinary matters involving advocates. The judgment confirms that Advocates' Societies retain their common-law standing to bring disciplinary applications, including striking-off applications, notwithstanding the establishment of the LPC. The case also provides important guidance on what constitutes reviewable administrative action under PAJA, emphasizing that a decision must adversely affect rights and have a direct, external legal effect to be reviewable. The judgment clarifies the transitional provisions in section 116 of the LPA and affirms that the restructuring of the legal profession did not eliminate the traditional role of Advocates' Societies as custodians of professional standards. It also confirms the continuing inherent jurisdiction of the High Court over legal practitioners.