CIV/APN/173/64 IN THE HIGH COURT OF
In the Application of :
ALEXIS TSOTANG MONYAKO Applicant
THE LAW SOCIETY Respondent
Delivered by the Hon. Mr. Justice B.K. Molai on the
16th day of November, 1984.
This is an application by the applicant for an admission
as an Attorney.
Briefly the facts are that in 1956 the applicant
obtained a Degree of Bachelor of Arts from the University of South
Africa in the
Republic of South Africa. In 1970 ...while serving as
a magistrate in Lesotho he satisfied the requirements for the
examination of the same University.
On 13th April, 1978, the applicant entered into Articles
of clerkship with the late Attorney Kolobe Motlamelle. The Articles
to be served by the applicant for a period of three years in
terms of sections 8 and 9 of the Legal Practitioners Act No. 11 of
1967. Following the death of Attorney Kolobe Motlamelle on 27th
September, 1979, the Articles were ceded to Attorney A.P.S. Mda. For
reasons which are not material for the decesion in this matter, the
Articles were subsequently ceded to Attorney W.M. Tsotsi under
the applicant has, on 27th July, 1984, satisfactorily completed
service of his Articleship. Wherefore the applicant applies
admission as aforesaid.
2/ The application
The application was opposed by the respondent on the
grounds that the applicant had not passed the examinations required
8(c)(iv) of the Legal Practitioners Act No. 11 of 1983
and the papers filed on his behalf by his Attorney of record were
teaming with a number of irregularities. An application for
correction/condonation of the irregularities in the papers was filed
and not opposed. I am, therefore, prepared to grant the application.
However, the problem still exists that the applicant has
not passed the examinations. While on this point, it is significant
that the applicant entered into his service of Articles
under the now repealed Legal Practitioners Act No. 11 of 1967.
Naturally he accrued certain rights and obligations under the
provisions of that Act. I am not aware of any provisions under the
new Legal Practitioners Act No. 11 of 1983 which abrogate
applicant's rights and obligations under the old Act. In other
words, the new Act does not have retrospective effect
applicant's case must,in my view, be dealt with under the provisions
of the old and not the new Act.
It is apparent from the facts that the basis upon which
the applicant seeks admission as an Attorney is that he has
served Articles and that is, indeed, common cause.
As the application falls to be governed by the
provisions of Section 7(c)(iv) of the now repealed Legal
Practitioners Act No. 11 of 1967 and not Section 8(c)(iv)
of the new Legal Practitioners Act No. 11 of 1985 it is
helpful to focus attention on the provisions of the former section
which read, in parts
"7.Every person who applies to be admittedand
enrolled as an Attorney shall produceto the satisfaction
of the High Courtproof that -(a)
(c) he -
3/ (ii) .......
(iv) has passed the examinations prescribed by the Chief
Justice under paragraph (b) of
subsection (2) , and the practical examination
referred to in paragraph (a) of subsection (4), of section
thirty-four and has
complied with the provisions of this Act relating
to service under articles and his application for admission and
enrolment is made
within a period of two years from the date of
completion of the articles or within such further period as the High
Court may allow
in terms of subsection (3) of section eighteen;"
It has been contended in argument that this Court has
inherent jurisdiction to exempt applicant from the
requirement of passing the examinations contemplated in
the Act on the grounds that no such examinations had been prescribed
Chief Justice; the applicant had passed Attorney's Admission
Examination of the University of South Africa which is of a higher
than the examination normally prescribed for Attorneys in
this country and as a magistrate in Lesotho the applicant had
experience in the procedure followed in the various courts
of Lesotho which procedure is the subject matter of the practical
envisaged by the practical examination referred to under
paragraph (iv) of subsection (c) of the above quoted section 7.
The argument clearly implies that prospective candidates
for admission as Attorneys do normally write examinations
that "no such examinations had been prescribed
by the Chief Justice." That being so, I find it difficult to
argument that the applicant should be exempted from
passing the prescribed examinations because the Chief Justice has not
any such examinations.
As regard the Attorney's Admission Examination which the
applicant has passed with the University of
4/ South Africa
South Africa that seems to me an Educational
Qualification which entitles him to serve a shorter period of
Articleship. It is certainly
not the examination envisaged under the
provisions of Section 7(c)(iv) of the Legal Practitioners Act
No, 11 of 1967.
I have underscored the word "shall" in the
above cited Section 7(c)(iv) of the Legal Practitioners Act No.
11 of 1967 to indicate my view that the requirements for passing the
examinations and service of the Articles are mandatory and
has, therefore, no descretion in the matter. If it were to exempt
the applicant in any of these requirements, this court
doubt, be acting ultra vires.
Having satisfactorily completed his service of Articles,
it seems to me that, the applicant had, of necessity,to pass within 2
of completion the examinations contemplated under the
provisions of Section 7(c)(iv) of the Legal Practioners Act No. 11
of 1967. There was no way he could circumvent the
In the premises, I take the view that this application
ought not to succeed and it is accordingly dismissed.
JUDGE 16th November, 1984.
For Applicant :Mr.Nthethe For Respondent : Mr.
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