Legal victory for BProc degree graduates

The Legal Practice Council (LPC) has agreed to abide by a court order which would clear the path for hundreds of law graduates who were blocked from registering their contracts for their articles of clerkship by the enactment of the Legal Practice Act (LPA) in 2018.

The High Court in Pretoria on Tuesday heard arguments on a case of two such graduates – Gabaikangwe Thendele and Zwelibanzi Thendele – had brought against the LPC as well as the minister of justice and the minister of higher education and training.

This after they in 2019 tried to register their practical vocational training (formerly articles of clerkship) contracts with the LPC – a prerequisite for admission as a practising attorney – but were turned away because as holders of BProc degrees, they didn’t meet the requirements.

The BProc degree used to be offered mainly by historically black universities as an alternative to the LLB degree, which was at the time only offered by their historically white counterparts.

It was eventually phased out post-1994 but holders of BProc degrees could still apply for admission as practising attorneys under the Attorneys Act and the Qualifications Legal Practitioners Amendment Act.

In 2018, though, the Attorneys Act was repealed by the enactment of the LPA. And under this new legislation, the requirements were changed so that only holders of LLB degrees – or of the international equivalent to an LLB – could register their contracts.

The new legislation did include transitional provisions, among them that “any person upon whom the [BProc] was conferred by a university of the republic, is regarded as being qualified to be admitted by the court and enrolled as an attorney by the council as if he or she held the [LLB], if all the other requirements in the Attorneys Act are complied with: Provided that such person has not later than 1 January 1999 registered for the first-mentioned degree”.

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However, the initial position the LPC adopted was that it could still not register the contracts – which prompted the Thendeles to turn to the court with a constitutional challenge.

They argued the LPA infringed on the right to equality by disproportionately impacting black graduates the right to education and the right to freedom of trade, occupation and profession. Following the institution of the current litigation, the LPC agreed to register their articles but the two decided to forge ahead with the case to clear the path for other BProc degree holders.

The court heard yesterday the justice minister had already undertaken to amend the relevant legislation and a draft order, among others, giving him 24 months, and directing that the legislation be read so as to provide for BProc degree holders in the meantime – and with which the LPC agreed to abide – was handed up.

Judgment was reserved.

– bernadettew@citizen.co.za