De Freitas v Society of Advocates of Natal and Another

The first applicant, an advocate and member of the Independent Association of Advocates of South Africa (IAASA), accepted instructions directly from members of the public without the involvement of an attorney, contrary to the long‑standing referral rule applicable to advocates. The Society of Advocates of Natal (SAN), of which he was not a member, instituted disciplinary proceedings in the Natal High Court under section 7(2) of the Admission of Advocates Act 74 of 1964. The High Court found the first applicant guilty of unprofessional conduct and suspended him from practice for six months. It also dismissed a counter‑application by IAASA seeking a declaratory order that its members were not bound by the referral rule. The applicants sought leave to appeal directly to the Constitutional Court, challenging (a) the constitutionality of section 7(2) of the Advocates Act insofar as it allowed SAN to bring proceedings against non‑members, and (b) the constitutionality of the referral rule as infringing the right freely to practise a profession.

The application for leave to appeal directly to the Constitutional Court was refused. Costs were ordered to be costs in the cause if the matter was taken further to the Supreme Court of Appeal; failing that, the applicants were ordered to pay the costs, including the costs of two counsel for the respondent.

The case clarifies the Constitutional Court’s approach to direct appeals and affirms that matters involving the regulation of the legal profession and development of the common law should ordinarily be dealt with first by the Supreme Court of Appeal. It also confirms that section 7(2) of the Admission of Advocates Act is constitutionally valid and that societies of advocates may initiate disciplinary proceedings against non‑members.