Court Overturns LPC's Rejection of Candidate Lawyer's Cession Agreement

Case Law Summary: Matlhwana v South African Legal Practice Council and Others (051162/2024) [2024] ZAGPPHC 445 (15 May 2024)

Facts

The Applicant is a candidate legal practitioner, who brought an urgent application to review and set aside the failure by the Gauteng Provincial Office of the Legal Practice Council to register a cession of their PVT contract, additionally to register such cession.?

The Applicant entered into a PVT contract with one Mr Mkhabela, and duly registered such contract with the LPC. After 22 months, the Applicant resigned from Mr Mkhabela’s employment, and?in view of?completing the remaining 2 months, entered into employment with one Mr Diaho, by registering a cession of the PVT. The Applicant lodged this cession with the?LPC,?but heard nothing from the LPC. Subsequently, when the Applicant lodged his application for admission, the LPC indicated that the cession had not been registered as it was lodged more than 14 days after resigning from Mr Mkhabela’s?employment,?and that the remaining 2 months spent with Mr Diaho was invalid. The LPC proceeded to oppose the application for admission.?

Ratio decidendi

The court starts by reprimanding the LPC’s conduct in failing to notify the Applicant timeously of the issues with the?cession, as well as only notifying the Applicant three days before his admission that they intend to oppose the application.

The issue for determination was whether the LPC was entitled to refuse the registration of the cession, where the LPC was in fact under the obligation to ensure that all the necessary documentation was submitted to substantiate the cession in a?timeous?manner. ?Referring to the obligations of the LPC in terms of its rules promulgated for?the purposes of?cession of PVT contracts, there is a clear responsibility on the LPC? to ensure that it is satisfied with documentation submitted (such as cession agreements) before registration. It was only in specific circumstances that a PVT contract would be “abandoned” by the candidate in the way contended by the LPC, none of which the court found to be applicable. Additionally, the fact that the LPC contested the secondment of the Applicant’s contract with Mr Diaho, clearly indicated to the court that the LPC?in fact?regarded the cession agreement as valid and registered.?

The court turns to the grounds of administrative?review,?and finds that the action was?in fact?an administrative action?(due to the fact that?the registration was denied on substantive grounds, and was not merely clerical), that it was procedurally unfair, influenced by an error in law and was irrational. Procedurally unfair,?due to the fact that?the LPC did not notify the Applicant of the issues with the cession agreement until a few weeks before his admission date, causing procedural prejudice. There was an error in law, as the LPC misinterpreted the rules it promulgated for?the purposes of?cessions of PVT contracts. Finally, it was found to be irrational for various reasons, including the fact that the point of the rules is to practically assist candidate attorneys who experience temporary breaks in their service provision, not exclude them; and that the LPC’s interpretation of the rule would arbitrarily prevent certain individuals from entering the legal profession.?

The court declared the decision of the LPC in failing to register the cession agreement to be?unlawful,?and set it aside. The cession of the PVT agreement was deemed to have been duly registered on the day it was originally submitted?with?the LPC.?

Read the full judgment at?https://www.saflii.org/za/cases/ZAGPPHC/2024/445.html.