Van der Spuy v General Council of the Bar of South Africa

The applicant, an advocate and member of the Independent Advocates Association of South Africa, was found guilty of unprofessional conduct by the Pretoria High Court for breaching the advocates’ referral rule, which prohibits advocates from taking instructions directly from the public. He was suspended from practice for six months. His application for leave to appeal was refused by the High Court, and his petition to the Supreme Court of Appeal was dismissed. The applicant did not apply for leave to appeal to the Constitutional Court. Instead, he later sought direct access to the Constitutional Court, challenging the constitutionality of the referral rule on the basis that it infringed sections 22, 34 and 35(2)(b) of the Constitution.

The application for direct access to the Constitutional Court was dismissed. No order as to costs was made.

The case reaffirms the Constitutional Court’s cautious approach to granting direct access and underscores that constitutional challenges to professional regulation should ordinarily follow the normal hierarchy of courts. It emphasizes the importance of a proper evidentiary record and the role of lower courts, particularly the SCA, in developing the common law and regulating the legal profession.