ZACC 47
Hearing Date: 29 August 2019
Judgement Date: 11 December 2019
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Wednesday 11 December 2019 at 10h00, the Constitutional Court handed down judgment in an application for the confirmation of an order by the High Court of South Africa, KwaZulu-Natal Division, Pietermaritzburg (High Court), which declared section 26(1)(a) of the Legal Practice Act 28 of 2014 (LPA) unconstitutional.
On 28 September 2018, the applicant, the Independent Institute of Education (Pty) Ltd brought a review application in the High Court against the refusal of the KwaZulu-Natal Law Society (KZN Law Society) to recognise its LLB degree as being compliant with the requirements for entry into the attorneys’ profession, based on the KZN Law Society’s interpretation of the term “university”, as it appears in section 26(1)(a) of the LPA. The applicant challenged the constitutional validity of section 26(1)(a) of the LPA to the extent that the term “university” in the impugned provision unjustifiably excluded it, notwithstanding that it is a duly registered and accredited private higher education institution, as envisaged by section 29(3) of the Constitution.
On 22 February 2019, the High Court held that section 26(1)(a) of the LPA is constitutionally invalid to the extent that the use of the word “university” excludes private higher education institutions duly registered and accredited to offer the LLB degree. In its reasoning, the High Court held that section 26(1)(a) of the LPA violates sections 9(1), 22 and 29(3) of the Constitution.
The applicant approached the Constitutional Court for the confirmation of the declaration of the High Court order. In addition, it sought a declaratory order that its LLB degree graduates are just as qualified as graduates from public universities to enter the legal profession.
During the hearing, it became clear that parties were in agreement with the outcome of the High Court judgment, but disagreed with the High Court’s decision that section 26(1)(a) of the LPA is not reasonably capable of being given a constitutionallycompliant interpretation. The eighth respondent, the General Council of the Bar argued that the term “university” can, and should, be interpreted to include private higher education institutions that are registered and accredited in South Africa. It further argued that such an interpretation is not unduly strenuous to the text in section 26(1)(1) of the LPA, but rather ensures constitutional compliance and gives proper effect to the purpose of the legislation.
The first judgment penned by Mogoeng CJ and concurred in by Jafta J, Khampepe J, Madlanga J, Mhlantla J, Mathopo AJ, and Victor AJ held that the words “any university” in section 26(1)(a) of the LPA are capable of, and should be, given a meaning that is in conformity with the provisions of section 29(3) of the Constitution which gives effect to section 39(2). Therefore, the first judgment held that the High Court order declaring section 26(1)(a) of the LPA constitutionally invalid should not be confirmed and should accordingly be set aside. The reason for this is because section 39(2) of the Constitution dictates that “when interpreting any legislation . . . every court, tribunal, or forum must promote the spirit, purport and objects of the Bill of Rights”. This means that section 39(2) enjoins the courts, when interpreting legislation, to prefer an interpretation that best promotes the Bill of Rights.
The first judgment further held that the fact that the KZN Law Society sought to interpret a word in one piece of legislation through the prism of a special meaning ascribed to it in another legislation is impermissible in law save, for example, in instances where the need to do so flows effortlessly from the context, the provisions of the statutes being used as a guideline, or where the impugned provision cross-references a meaning of the same word or expression in another piece of legislation. But even then, without disregarding the very provisions of legislation sought to be relied on or inadvertently side-lining the section 39(2) injunction.
On the issue of costs, the Court held that although the applicant asked for costs against the third respondent, the Minister of Justice and Correctional Services on the basis that he failed to take measures admittedly necessary to have section 26(1)(a) amended to include “private higher education institutions duly accredited and registered to provide the LLB degree”, the Court was satisfied that it was the KZN Law Society and not the Minister, who should bear the costs in this Court and in the High Court. The Court reasoned that it was the KZN Law Society’s mistaken view that an accredited LLB degree from a duly registered private “higher educational institution in which students study for degrees” is not a university for the purposes of section 26(1)(a), which was the source of the problem. It being unsuccessful, costs should follow the result. Accordingly, the Court ordered that the KZN Law Society or its successor, the KwaZulu-Natal Provincial Legal Council, pay the costs of the applicant, in this Court and in the High Court.
A second judgment penned by Theron J and concurred in by Froneman J concurs with the first judgment that the term “university” in section 26(1)(a) of the LPA are reasonably capable of a constitutionally-compliant interpretation and accordingly that the High Court’s declaration of constitutional invalidity should be set aside. The second judgment addressed the narrow principle that courts should interpret legislative provisions with reference to, and consistently with, other legislation. This is because a contextual approach to statutory interpretation requires consideration of other legislation dealing with the same subject matter. The second judgment held that the meaning ascribed to “university” in the Higher Education Act 101 of 1997 (Higher Education Act) is therefore relevant to the interpretive exercise in respect of section 26(1)(a). When constitutional rights are implicated, this principle is trumped by the necessity of consistency, in so far as reasonably possible, with the Constitution as the supreme law. The second judgment found that despite giving “university” a meaning different from that ascribed to it in the Higher Education Act, the constitutionally-compliant interpretation adopted in the first judgment was not unduly strenuous to the text in section 26(1)(a) of the LPA.
The Full judgment here