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Is South Africa’s new public protector ‘a qualified advocate’?

South Africa’s public protector is in hot water following her order that parliament amend the Constitution to change the mandate of the South African Reserve Bank. When the bank went to court to overturn her findings, Busisiwe Mkhwebane admitted she was wrong.

Mkhwebane’s spokesman, Cleopatra Mosana, was left having to answer for the about-turn in a radio interview.

“The nexus question here is why the public protector, given her constitutional role and given that she’s an advocate – presumably qualified advocate – why she would have made such a basic mistake of ordering Parliament to do something that’s not within her powers to do? It’s massively embarrassing, isn’t it?” radio host Eusebius McKaiser asked Mosana.

She replied by saying that Mkhwebane “is a qualified advocate otherwise she wouldn’t be holding office”.

Is Mkhwebane, though? Questions have been raised as her name isn’t on the roll of advocates kept by the department of justice and updated monthly.

Public protector need not be an admitted advocate

South Africa's public protector, Busisiwe Mkhwebane, in her office in Pretoria in June 2017.

Contacted by Africa Check, Mosana said that Mkhwebane was admitted in 1997 by the then Transvaal high court in Pretoria (now the North Gauteng high court).

busisiwe
Photo: AFP/Phill Magakoe

But when asked for a copy of the order of admission issued by the court, Mosana told us: “Go to parliament, they appointed her. You are asking me for something that I cannot provide. I’m not her personal secretary.”

To be sure, South Africa’s public protector need not be an admitted advocate.

The Public Protector Amendment Act of 2003 states that:

“(3) The Public Protector shall be a South African citizen who is a fit and proper person to hold such office, and who -

  1. Is a judge of high court; or
  2. is admitted as an advocate or an attorney and has, for a cumulative period of at least 10 years after having been so admitted, practised as an advocate or an attorney; or
  3. is qualified to be admitted as an advocate or an attorney and has, for a cumulative period of at least 10 years after having so qualified, lectured in law at a university; or
  4. has specialised knowledge of or experience, for a period of at least 10 years, in the administration of justice, public administration or public finance; or
  5. has, for a cumulative period of at least 10 years, been a member of parliament; or
  6. has acquired any combination of experience mentioned in paragraphs (b) to (e), for a cumulative period of at least 10 years.”

Aspirant advocate must have LLB degree


To be admitted as an advocate, the basic requirement is that the aspirant possess a Bachelor of Laws (LLB) degree from any South African university. This is in addition to the following general requirements set out by the Admission of Advocates Act of 1964:

“3. (1) Subject to the provisions of any other law, any division shall admit and authorize to be enrolled to practise advocate any person who upon application satisfies the court -

  1. that he is over the age of twenty-one years and is a fit and proper person to be so admitted and authorized;
  2. that he is duly qualified;
  3. that he is a South African citizen or that he has been lawfully admitted to the Republic for permanent residence therein and is ordinarily resident in the Republic;
  4. in the case of any person who has at any time been admitted to practise as an attorney in any court in the Republic or elsewhere, that his name has been removed from the roll of attorneys on his own application…”

Advocates who want to join a voluntary association of advocates (commonly known as a bar) must, after their admission, complete a year-long apprenticeship. During this pupillage, the person “is paired with an experienced advocate to see first-hand how real work is carried out in chambers and in the court”, the General Council of the Bar of South Africa explains.

Upon completion, the advocate must then pass the General Council’s National Bar Examination. However, some advocates, such as corporate legal advisors or state advocates, do not belong to a bar.

Mkhwebane's CV lists an LLB degree from the then University of the North (now the University of Limpopo) and that she worked as state prosecutor between 1994 and 1996.

Mkhwebane’s admission took place on 24 June 1997


Kana Sekgota from the chief directorate for policy development at the justice department explained to Africa Check how the roll of advocates is maintained.

“Advocates are registered by registrars of the high courts. After registering them, a copy of court order is sent to us [the department of justice] to locate them on the roll of advocates,” Sekgota said. He added that some advocates may not appear on the roll when their order of admission hadn’t been sent to the department.

As Mkhwebane’s name isn’t on the roll, Africa Check went to the North Gauteng high court to search for her order of admission. We went through the cases that were set down or heard in 1997 and found the case number, 9180/97. According to the court records, Mkhwebane’s admission took place on 24 June 1997.

Unfortunately, the 1997 court order cannot be traced electronically and we had to request for it to be located(Update: After nearly eight weeks of following up we received the court order from the high court. It can be found here.)
 

New oversight body for legal practitioners coming


In September 2014, President Jacob Zuma signed into law the Legal Practice Act which “aligns the admission requirements for legal practitioners”, Barbara Whittle, communication manager at the Law Society of South Africa, told Africa Check.

The current admission process is regulated by two statutes: the Attorneys Act of 1979 and the Admission of Advocates Act of 1964. But once the Legal Practice Act is fully enacted, all attorneys and advocates will be registered with the Legal Practice Council.

At the moment, only chapter 10 of the Legal Practice Act is in force. The chapter established a transitional body, the National Forum on the Legal Profession, that “is putting in place the infrastructure for the Legal Practice Council”, Whittle said. She added that the council is expected to be in place by August 2018.

 

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