H E T H Mabaso v The Law Society of the Northern Provinces and Minister for Justice and Constitutional Development

The applicant was admitted as an attorney by the Bophuthatswana High Court on 14 June 2001 under Bophuthatswana legislation (Attorneys, Notaries and Conveyancers Act, 29 of 1984 of former Bophuthatswana). In August 2001, he applied for enrolment as an attorney in KwaZulu-Natal under section 20 of the Attorneys Act, 53 of 1979, a "short-cut" procedure for attorneys admitted under the Act to be enrolled in other provinces without a full application. He was successfully enrolled in KwaZulu-Natal in September 2001. In October 2001, he applied for enrolment in the Pretoria High Court. The Law Society of the Northern Provinces objected to this enrolment, arguing that section 20 only applied to attorneys admitted "under this Act" and not those admitted under former homeland legislation. Despite the objection being lodged, the registrar erroneously enrolled the applicant in November 2001. The Law Society then applied to the High Court to remove the applicant's name from the roll, which was granted. The applicant counter-claimed that section 20 was unconstitutional. The High Court dismissed the counter-claim. The applicant sought leave to appeal to the Supreme Court of Appeal but failed to comply with the SCA's rules regarding filing of the record. The SCA refused condonation and did not consider the constitutional issue.

• Whether the applicant should seek leave to appeal against the High Court decision or the SCA's refusal of condonation
• Whether section 20 of the Attorneys Act, 53 of 1979 is inconsistent with the Constitution by excluding attorneys admitted under former homeland legislation from the simplified enrolment procedure
• Whether this exclusion constitutes unfair discrimination in terms of section 9(3) of the Constitution
• Whether it is in the interests of justice to grant leave to appeal where the SCA refused condonation for failure to comply with its rules but did not consider the constitutional issue
• What is the appropriate remedy if section 20 is found to be unconstitutional

1. The Minister for Justice and Constitutional Development joined as second respondent. 2. Application for leave to appeal against SCA decision dismissed. 3. Application for leave to appeal against High Court's orders removing applicant's name from roll dismissed. 4. Application for leave to appeal against High Court's dismissal of constitutional counter-claim granted. 5. Section 20(1) of the Attorneys Act, 53 of 1979 declared inconsistent with the Constitution to the extent that it includes the words "under this Act" and omits reference to courts in former homeland territories. 6. Section 20(1) to be read as: "Any person admitted and enrolled as an attorney, or a notary or conveyancer by any court in the Republic of South Africa or by any court in the former territories of Transkei, Ciskei, Bophuthatswana and Venda may in the manner prescribed by subsection (2) apply to the registrar of any court other than the court by which he was so admitted and enrolled to have his name placed on the roll..." 7. Declaration of invalidity takes effect from 27 April 1994. 8. No consequential relief afforded to applicant. 9. No costs order.

Section 20 of the Attorneys Act, 53 of 1979 unfairly discriminates against attorneys admitted under former homeland legislation by excluding them from a simplified enrolment procedure available to attorneys admitted under the Act. This discrimination reinforces and perpetuates patterns of disadvantage associated with apartheid's homeland system and impairs fundamental human dignity. The differentiation is not justifiable under section 36 of the Constitution. As a procedural matter, where the Supreme Court of Appeal has judicially refused condonation for failure to comply with its rules without considering a constitutional matter, an applicant seeking to pursue the constitutional issue should apply for leave to appeal directly against the High Court judgment under Rule 19, not against the SCA's refusal of condonation. This protects the SCA's power to regulate its own process while enabling the Constitutional Court to fulfil its constitutional mandate.

The Court made several important observations: (1) While the SCA's recommendation that "legislative attention be given to the issue as soon as possible" was noted, the Court proceeded to decide the matter judicially. (2) The Court observed that law societies play an important role in ensuring integrity in the legal profession and act in the public interest—courts will ensure concerns about fitness are properly investigated before requiring admission. (3) The Court emphasized that Rule 5 (requiring joinder of relevant Ministers in constitutional challenges) is an important manifestation of respect between different arms of government in a constitutional democracy and cannot be lightly waived. (4) The Court noted it would not ordinarily take steps to remedy a party's failure to comply with Rule 5, but did so here only because the rule had just been introduced and the applicant had complied with the former rule. (5) The Court indicated that applications to admit new evidence after argument (under Rule 31) will be granted only in extraordinary circumstances with powerful reasons, and controversial evidence cannot be admitted without giving affected parties opportunity to respond. (6) The Court observed that the differentiation at issue would not be cured simply by evidence that the Bophuthatswana Law Society was not operating effectively, as the scheme of section 20 already protects the interests of receiving law societies through the objection mechanism in section 20(3).

This case is significant for several reasons: (1) It establishes important procedural principles for appeals to the Constitutional Court where the SCA has refused condonation without considering a constitutional issue. Under the new rules, applicants should appeal the High Court decision directly rather than appealing the SCA's refusal of condonation. (2) It affirms that ten years into constitutional democracy, legislative provisions that perpetuate apartheid-era disadvantages and discrimination based on homeland status constitute unfair discrimination. (3) It demonstrates the Court's commitment to dismantling legal vestiges of apartheid that continue to stigmatize and disadvantage those from former homeland areas. (4) It clarifies that not all legislative disparities arising from regional variations constitute unfair discrimination (per Makwanyane), but contextual analysis is required—provisions that reinforce patterns of stigma and disadvantage will be struck down. (5) It demonstrates judicial crafting of remedies through reading-in to cure constitutional defects while preserving legislative schemes. (6) The case advances substantive equality in the legal profession by ensuring attorneys admitted in former homelands have equal access to simplified enrolment procedures across South Africa.