The court declared section 25(3)(a) of the Legal Practice Act 28 of 2014 (LPA) unconstitutional and invalid. In doing so, the court has not merely struck down a statutory provision, it has challenged an entrenched professional distinction, demanding that the regulation of legal practice be measured against constitutional values rather than inherited tradition. The declaration of invalidity has been referred to the Constitutional Court for confirmation in terms of section 172(2)(a) of the Constitution.

Historically, attorneys did not enjoy rights of appearance in the superior courts as that privilege was reserved for advocates. The Rights of Appearance in Courts Act 62 of 1995 partially bridged this divide by permitting attorneys to apply for a certificate granting such rights, provided they had practised for at least three years. The LPA, which sought to consolidate the profession under a unified system of “legal practitioners”, retained this limitation: section 25(3)(a) required attorneys to practise for a continuous period of not less than three years before obtaining a certificate to appear in the High Court, Supreme Court of Appeal and Constitutional Court.

A proviso permitted reduction of this period upon completion of an approved trial advocacy programme. Advocates faced no equivalent restriction; a freshly admitted advocate could step directly into the High Court, while an equally qualified attorney could not.

The applicants challenged the constitutionality of section 25(3)(a) on three primary grounds: violation of the right to equality (section 9), infringement of dignity (section 10), and unjustifiable limitation of the right to choose and practise a profession (section 22). The central question was whether the differential treatment between attorneys and advocates, particularly the imposition of a temporal barrier on the former, could withstand constitutional scrutiny. On all three grounds, the court found that it could not.

Finding

Applying the two-stage test from Harksen v Lane 1998 (1) SA 300 (CC), the court found that section 25(3)(a) plainly differentiated between attorneys and advocates. While it was argued that the limitation aimed to ensure sufficient advocacy skills, the court found this unconvincing: the provision imposed no competency-based assessment and operated purely as a function of time. As counsel for the applicants put it, an admitted attorney need only “languish at home” for three years before suddenly being permitted to appear in the Constitutional Court.

The court held that this time-based restriction, without any link to the acquisition of skills, was arbitrary and failed the first leg of the Harksen test, rendering it a violation of section 9(1) of the Constitution.

The court further held that section 25(3)(a) infringed the right to dignity under section 10 of the Constitution. Drawing on Affordable Medicines Trust v Minister of Health 2006 (3) SA 247 (CC), the court affirmed that one’s work is constitutive of one’s identity and dignity. By rating attorneys as “less worthy” than advocates for three years, the provision diminished their professional standing in a manner that could not be justified.

Section 22 of the Constitution guarantees the right to choose a trade, occupation or profession freely, subject to regulation by law. The court accepted that regulation is permissible but must be rational and justifiable. The three-year waiting period, without any accompanying requirement for the attainment of advocacy skills, was simply arbitrary. Significantly, the Minister of Justice and Constitutional Development (Minister) elected not to advance any justification, and the Minister’s own deponent described the statutory provisions as an “unsatisfactory state of affairs”.

The judgment has been referred to the Constitutional Court for confirmation in terms of sections 167(5) and 172(2)(b) of the Constitution. Until confirmed, section 25(3)(a) remains on the statute book. Nevertheless, the judgment’s significance is undeniable: it further erodes the artificial divide between attorneys and advocates in respect of rights of appearance and signals that entry into the superior courts must be a question of capability, not statutory delay.

Ramalepe represents an important step toward constitutional coherence within the legal profession. But its implications extend beyond the courtroom door. In striking down a provision that measured readiness by calendar rather than capability, the court has affirmed a simple truth: in a constitutional democracy, professional gates must be guarded by competence, not custom. The legal profession, of all professions, cannot demand constitutional fidelity from others while exempting its own structures from scrutiny. If the law is to be the great equaliser, it must first equalise those who practise it.