The value of gross-boarder legal practice cannot be overemphasized. The international trade of goods and services commenced from time immemorial and still subsists to date. At the forefront of economic globalisation is the World Trade Organization (WTO), then other societies such as International Bar Association (IBA), and SADC Lawyers Association. The main instrument facilitating inter-state provision of professional legal services is the WTO’s General Agreement on Trade in Services (GATS). WTO’s Services Sectoral Classification List, (1991) and Central Product Classification (CPC) 861 of the UNCPC, (1991) encompass professional legal services as trade in services. Consequently, GATS plays a key role in the regulatory framework which administers mutual recognition and admission of legal practitioners interstates.
Lesotho had immensely participated in the international market, albeit more as an importer than exporter. The legal services are no exception to a range of services imported by the Kingdom of Lesotho from various African states in particular the Republic of South Africa. The Superior Courts of Lesotho, being the High Court and the Court of Appeal were presided by South African Judges for decades. The Court of Appeal of Lesotho is still adjudicated mostly by judges from other African countries. The ongoing high profile criminal cases in the High Court are adjudged by Justices from commonwealth countries and prosecuted by a South African lawyer.
Sight is not lost of the late citizen of Lesotho Mr Michael Ramodibedi who was the President of the Court of Appeal of Lesotho for years. He also served in the Superior Courts of several commonwealth countries including Swaziland, Botswana and Seychelles. However, it cannot be gainsaid that only a handful of Lesotho Advocates are admitted and practice internationally in particular in the Courts of South Africa. Meanwhile many South African Advocates are religiously admitted and practice in the Courts of Lesotho.
South Africa is a member of WTO since 1994 and bound by GAT as confirmed in Progress Office Machines CC v. South African Revenue Services 2007 4 All SA 1358 (SCA) 1362. Lesotho is also a member of WTO and GAT. As a measure to recognize foreign academic qualifications and services under Articles I and VII of GATS, South Africa formed South African Qualifications Authority (SAQA) established by the National Qualifications Framework Act, No. 67 of 2008. According to SAQA Lesotho Law Degree (LLB) equals South African’s as contemplated by section 3 (2) (ii) of the Admission of Advocates Act, No. 5 of 1964 and section 26 (b) of the Legal Practice Act, No. 28 of 2014.
Main obligations of member states under GATS are: (i) not to discriminate among foreign service providers by offering more favourable treatment to service providers of any one country under GATS Article II; (ii) not to take measures to discriminate between domestic and foreign service providers under GATS Article XVII; (iii) not to take measures which are defined in the GATS as restricting market access e.g., economic needs tests, quotas requirements for certain types of legal entities, and maximum foreign shareholding limits under GATS Article XVI; (iv) to administer domestic regulations in a reasonable, objective and impartial manner under GATS Article VI; and, (v) to publicise all measures concerning GATS. In the event that a member fails to fulfill its obligations or commitments under the GATS, affected member state have recourse to the WTOs dispute settlement mechanism under Article XXIII.
This writing focuses on admission and enrolment of Advocates into the Courts of the Republic of South Africa. Of course admission in South Africa opens doors of practice into other countries of the globe e.g. Nigeria, Namibia, Zimbabwe and Swaziland. An Advocate admitted in Lesotho also qualifies for admission in other African countries like Zimbabwe, Swaziland, Botswana and South Africa. Most Lesotho lawyers who are admitted and practice in the Republic of South Africa already have their roots in that country. Others have South African identity documents or at least they are South African permanent citizens.
An admission of Advocates between Lesotho and the Republic of South Africa is not a privilege, but a legally cognizable right premised on international mutual recognition commitment. Articles I and VII of GATS endow member states to put forth fair measures recognizing and facilitating inter-state admission of Advocates.Chapter 2 of the South African Constitution, 1994 guarantees right to equality and free trade, occupation and profession not only to citizens but even to foreigners. See: Somali Association of South Africa and 5 Others v. Limpopo Department of Economic Development and 9 Others, 2015 (1) SA 151 (SCA).
Section 6 (1) (2) of Lesotho Legal Practitioners Act, No. 11 of 1983 entitles South African Advocates to admission in the Courts of Lesotho. Reciprocally, section 5 of the South African Admission of Advocates Act, No. 5 of 1964. Except that the operation of the latter section is deferred until publication of the government gazette designating the Kingdom of Lesotho. This relevant gazette i.e. Government Gazette, No. 27015 was only published on the 19th November, 2004. Forty years later. According to GATS Articles VI and XVI a member state may delay the enjoyment of the market by another member state, provided it is for a reasonable and fair period.
In 2014 South Africa promulgated the Legal Practice Act, No. 28 which came into full force in 2018.This Act abolished the distinction between Advocates and Attorneys something which was long prayed forin our jurisdiction in Mats’aseng Ralekoala v. Mininister of Justice, Human Rights and Others, C of A CIV/16/2012 to no avail. The Act also repealed entirely the Admission of Advocates Act. Section 24 of the Legal Practice Act provides that foreign legal practitioners i.e. Advocates and Attorneys may only be admitted after the Minister of Law and Constitutional Development had made regulations after consultation with the Minister of Trade and Industry and the Council regulatingand facilitating admission and practice of foreign Practitioners. The Regulations had since been made namely: The South African Legal Practice Council Rules, 2018 but in terms of other sections not section 24. Is the Minister going to wait for another endless period before promulgating the Regulations regulating admission of foreign Advocates as occurred by section 5 of Admission of Advocates Act? This would clearly be unfair and call for negotiations for catalysing promulgation of the Regulations. Otherwise Lesotho may have to invoke the remedy of specific performance of contract. Alternatively, suspend admission of South African advocates under Article XXIII of GATS.
On the other hand, all Lesotho Advocates who were entitled to admission before advent of the Legal Practice Act are still entitled to admission ad infinitum per section 115 of the Act. This Act commenced on the 1st November, 2018 per section 120 (4) read with Proclamation No. R 31 of 2018. Put simply, an Advocate who was already admitted and practicing in the Courts of Lesotho before arrival of the Legal Practice Act is still entitled to admission in terms of section 5 of the Admission of Advocates Act under the new Act. See: Ex parte Roeline Goosen and 9th Others plus 16 Amicus curiae, Case NO: 2018/2137. And as a matter of fact Lesotho Advocates were admitted beyond the 1st November, 2018.