Joaquim Augusto de Freitas and Independent Association of Advocates of South Africa v The Society of Advocates of Natal

The first applicant was an advocate who accepted work directly from members of the public without the intervention of an attorney, contrary to the referral rule. In September 1996, the Society of Advocates of Natal (respondent) applied to the Natal High Court to strike the first applicant off the roll of advocates. The second applicant (Independent Association of Advocates of South Africa) and the Natal Law Society intervened. In April 1997, the second applicant launched a counter-application. A full bench of the Natal High Court suspended the first applicant from practice for six months for unprofessional conduct and dismissed the second applicant's counter-application which sought a declaration that advocates who were not members of the respondent were not bound by the referral rule. The applicants sought leave to appeal directly to the Constitutional Court.

• Whether section 7(2) of the Admission of Advocates Act 74 of 1964 is unconstitutional insofar as it entitles a society of advocates to initiate disciplinary proceedings against an advocate who is not one of its members
• Whether the referral rule, which prohibits advocates from accepting work directly from the public without the intervention of an attorney, constitutes an unconstitutional infringement of an advocate's right to practise a profession under sections 22 and 39(3) of the 1996 Constitution
• Whether it is in the interests of justice for the Constitutional Court to hear the appeal directly rather than the Supreme Court of Appeal
• Whether the interim Constitution or the 1996 Constitution applies to the proceedings

The application for leave to appeal to the Constitutional Court was refused. Should the applicants take the matter further, costs were to be costs in the cause. If applicants failed to initiate proceedings within one month or failed to secure leave to appeal, they were ordered to pay the costs of the application including the costs of the rule 18 proceedings in the High Court, with the respondent's costs to include costs of two counsel.

1. Section 7(2) of the Admission of Advocates Act 74 of 1964 does not unconstitutionally grant a society of advocates jurisdiction over non-member advocates; it merely confers standing to apply to court for disciplinary action, with disciplinary powers remaining with the court. 2. When a constitutional matter involves the development of the common law rather than direct application of constitutional provisions, it is ordinarily not in the interests of justice for the Constitutional Court to exercise direct appellate jurisdiction without the matter first being considered by the Supreme Court of Appeal, which has expertise in common law matters. 3. The regulation of the legal profession and determining the fitness of members to practice is a matter in respect of which the Supreme Court of Appeal has inherent common law jurisdiction and particular expertise. 4. Under section 167(6) of the 1996 Constitution, leave to appeal directly to the Constitutional Court requires demonstration that it is in the interests of justice to do so, considering factors beyond mere constitutional characterization, including the nature of the dispute and the appropriate forum for its resolution.

The Court expressed no view on the merits of the appeal, whether there were reasonable prospects of success, or on the correctness of the High Court's decision to apply the 1996 Constitution rather than the interim Constitution. Langa DP noted that the validity of the applicants' contention that the public would benefit from reduced litigation costs if the referral rule was abolished had been rejected by the High Court in its main judgment and in both majority and minority judgments on the rule 18 certificate application. The Court also observed that its conclusion would be no different if the issues were to be dealt with under the interim Constitution rather than the 1996 Constitution, as the Appellate Division had jurisdiction under the interim Constitution to develop the common law in accordance with section 35(3). The Court noted that while time, costs and public importance are important considerations in determining whether to grant direct access, they are not the only factors, and the nature of the dispute must be considered in deciding what is in the interests of justice.

This case is significant for establishing important principles regarding the Constitutional Court's jurisdiction and the appropriate forum for constitutional matters involving the development of common law. It clarifies that when a constitutional matter turns on the development of the common law rather than direct constitutional application, the Supreme Court of Appeal is ordinarily the appropriate forum to hear the matter first, given its expertise in common law matters. The case also confirms that section 7(2) of the Admission of Advocates Act does not unconstitutionally grant jurisdiction over non-members but merely confers standing to initiate court proceedings. The judgment reinforces the principle that the Constitutional Court should exercise restraint in hearing direct appeals where the SCA has jurisdiction and expertise, particularly in matters concerning professional regulation and common law development.