Hector Ernest Themba Herold Mabaso v Law Society of the Northern Provinces

The appellant was admitted and enrolled as an attorney by the Bophuthatswana High Court on 14 June 2002 under the Attorneys, Notaries and Conveyancers Act 29 of 1984 (the 'Bophuthatswana Act'). In August 2001, he applied in terms of s 20(1) of the Attorneys Act 59 of 1979 to be placed on the roll of attorneys of the Natal Provincial Division, which was successful. On 10 October 2001, he applied to the Registrar of the Transvaal Provincial Division under s 20(1) to have his name placed on that court's roll of attorneys. The respondent lodged an objection on the basis that s 20(1) only applies to persons admitted under the Attorneys Act 59 of 1979, not the Bophuthatswana Act. Despite the objection, the Registrar enrolled the appellant on 9 November 2001, as the objection letter was not placed before the Registrar. The respondent then applied to the Transvaal Provincial Division to set aside the enrolment, which was successful. The appellant was also ordered to pay costs on an attorney-client scale.

• Whether the respondent (Law Society of the Northern Provinces) had locus standi to bring the application to set aside the enrolment
• Whether the Registrar could lawfully enrol the appellant's name on the roll of attorneys after an objection had been lodged in terms of s 20(3) of the Attorneys Act
• Whether s 20(1) of the Attorneys Act 59 of 1979 discriminates unconstitutionally against persons admitted under the Bophuthatswana Act
• Whether condonation should be granted for the late filing of the record and heads of argument

The application for condonation for the late filing of the record was dismissed with costs, including the costs relating to the appeal. The order of the court a quo setting aside the appellant's enrolment was effectively upheld.

Where an objection in writing is lodged by the secretary of the relevant law society within 21 days in terms of s 20(3) of the Attorneys Act 59 of 1979, the registrar is not empowered to place the applicant's name on the roll of attorneys until that objection has been disposed of. An enrolment made in such circumstances is irregular and liable to be set aside. A law society that is the successor to a statutorily recognized law society and performs the functions contemplated by the Attorneys Act in a particular area has locus standi to object to enrolment applications and to seek to set aside irregular enrolments.

The court recommended that legislative attention be given to the issue of whether s 20(1) of the Attorneys Act 59 of 1979 discriminates against persons admitted under the Bophuthatswana Act (who cannot use the s 20(1) administrative process) to ensure uniformity and certainty in the attorneys' profession. The court noted that judicial notice could be taken of the fact that the areas served by the respondent make up the biggest portion, if not all, of what used to be known as 'Transvaal'. The court also observed that even a voluntary association of attorneys would have standing to bring such an application.

This case clarifies the procedural requirements under s 20(3) of the Attorneys Act 59 of 1979, particularly that a registrar is not empowered to enrol an applicant's name when an objection has been lodged until that objection has been disposed of. It also addresses issues of locus standi for law societies that underwent name changes following constitutional transformation. The case highlights potential constitutional concerns regarding the treatment of attorneys admitted under the former Bophuthatswana Act, though it did not definitively resolve this issue. It also demonstrates the strict approach courts take to compliance with rules regarding the filing of appeal records and the requirements for condonation applications.