HIGH COURT OF LESOTHO
Application of :
TSOTANG MONYAKO Applicant
by the Hon. Mr. Justice B.K. Molai on the 16th day of November, 1984.
an application by the applicant for an admission as an Attorney.
the facts are that in 1956 the applicant obtained a Degree of
Bachelor of Arts from the University of South Africa in the
of South Africa. In 1970 ...while serving as a magistrate in Lesotho
he satisfied the requirements for the Attorney's
examination of the same University.
April, 1978, the applicant entered into Articles of clerkship with
the late Attorney Kolobe Motlamelle. The Articles were
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 whom the applicant
has, on 27th July, 1984, satisfactorily completed service of his
Articleship. Wherefore the applicant
applies for admission as
application was opposed by the respondent on the grounds that the
applicant had not passed the examinations required by Section
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
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
the examinations. While on this point, it is significant to observe
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repealed Legal Practitioners Act No. 11 of 1967.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 and the applicant's case must,in
my view, be dealt with under
the provisions of the old and not the new Act.
apparent from the facts that the basis upon which the applicant seeks
admission as an Attorney is that he has satisfactorily
Articles and that is, indeed, common cause.
application falls to be governed by the provisions of Section
7(c)(iv) of the now repealed Legal Practitioners Act No. 11
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
person who applies to be admitted and enrolled as an Attorney shall
produce to the satisfaction of the High Court
(c) he -
(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
complied with the provisions of this Act relating to service under
articles and his application for admission and enrolment
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;"(My underlining)
been contended in argument that this Court has inherent jurisdiction
to exempt applicant from the requirement of passing
contemplated in the Act on the grounds that no such examinations had
been prescribed by the Chief Justice; the
applicant had passed
Attorney's Admission Examination of the University of South Africa
which is of a higher standard than the
prescribed for Attorneys in this country and as a magistrate in
Lesotho the applicant had acquired experience
in the procedure
followed in the various courts of Lesotho which procedure is the
subject matter of the practical examination envisaged
practical examination referred to under paragraph (iv) of subsection
(c) of the above quoted section 7.
argument clearly implies that prospective candidates for admission as
Attorneys do normally write examinations notwithstanding
such examinations had been prescribed by the Chief Justice."
That being so, I find it difficult to apprehend
the argument that the
applicant should be exempted from passing the prescribed examinations
because the Chief Justice has not prescribed
any such examinations.
the Attorney's Admission Examination which the applicant has passed
with the University of
Africa that seems to me an Educational Qualification which entitles
him to serve a shorter period of Articleship. It is certainly
examination envisaged under the provisions of Section 7(c)(iv) of the
Legal Practitioners Act No, 11 of 1967.
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 the court
has, therefore, no
descretion in the matter. If it were to exempt the applicant in any
of these requirements, this court would,
no doubt, be acting ultra
satisfactorily completed his service of Articles, it seems to me
that, the applicant had, of necessity,to pass within 2 years
completion the examinations contemplated under the provisions of
Section 7(c)(iv) of the Legal Practioners Act No. 11 of 1967.
was no way he could circumvent the examinations.
premises, I take the view that this application ought not to succeed
and it is accordingly dismissed.
Applicant :Mr.Nthethe For
: Mr. Moiloa.
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