TAFA v. ATTORNEY-GENERAL 1991 BLR 320 (HC)

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Citation: 1991 BLR 320 (HC)
Court: High Court, Lobatse
Case No:
Judge: Livesey Luke CJ
Judgment Date: August 16, 1991
Counsel:
Marumo for the appellant.
Flynote

Legal practitioner - Attorney - Admission - Qualification for admission - Applicant to have obtained degree of LL.B - Applicant passing examination for degree of LL.B - Degree not yet conferred - Whether applicant qualified to be admitted as attorney - Legal Practitioners Act (Cap. 61:01), s. 7 (c)(i).

Headnote

  A The petitioner applied under section 3 of the Legal Practitioners Act (Cap. 61:01) to be admitted and rolled as an attorney. Counsel for the applicant submitted that the applicant satisfied all the requirements for admission and in particular, that he possessed the qualifications for admission as an attorney by reason of the fact that he had passed the LL.B. degree examination of the University of Botswana.

  B Held: a student may pass the examination leading to a degree, but that does not mean that he has obtained the degree. He obtains the degree when he receives a certificate regularly issued by the university certifying that the degree has been conferred on him. The appellant not having been conferred with the degree of Bachelor of Laws had not obtained that degree and therefore was not qualified for admission as an attorney.

  C Cases referred to:

     (1)     Ex parte Feetham 1954 (2) S.A. 468.

     (2)     Ex parte Ormonde 1940 C.P.D. 287.

     (3)     Ex parte Addleson 1948 (2) S.A. 16.

     (4)     Ex parte Haddad 1954 (2) S.A. 568.

Case Information

  D Application by the petitioner under section 3 of the Legal Practitioners Act (Cap. 61:01) to be admitted and enrolled as an attorney. The facts are sufficiently stated in the ruling.

Marumo for the applicant.
Judgment

  E Livesey Luke C.J. The above-named petitioner or applicant has applied to this court to be admitted and enrolled as an attorney. The application is made under section 3 of the Legal Practitioners Act (Cap. 61:01) which, so far as relevant, reads:

     "Any fit and proper person who possesses the qualifications hereinafter prescribed may apply to the court upon   F written petition to be admitted and enrolled as an advocate, attorney ... as the case may be, and the court shall, unless cause to the contrary is shown to its satisfaction, admit and enrol such person as an advocate, attorney ..."

Learned counsel for the applicant claims that the applicant has satisfied all the requirements for admission. In particular he submitted that the applicant possesses the qualifications for admission   G as an attorney.

The qualifications for admission as an attorney are set out in section 8 of the Legal Practitioners Act (Cap. 61:01). The section, so far as relevant, reads:

     "The following persons shall be qualified to be admitted and subject to the provisions of section 13, to practise as attorneys ...

  H (c) any Botswana citizen or citizen of a Commonwealth country entitled under this Act to be as an advocate of the Courts of Botswana ..."

The qualifications for persons entitled to be admitted as advocates are spelt out in section 7(a) to (d) of the Act. For the purposes of this ruling the relevant provision is contained in section 7(c) (i) which reads:


 

1991 BLR p322

LIVESEY LUKE CJ

     "any Botswana citizen or a citizen of a Commonwealth country who has obtained by examination  A

      (i)      the degree of LL.B from the University of Botswana ..."

The applicant claims that he is qualified for admission by reason of the fact that he has passed the LL.B degree examination of the University of Botswana. In support of his claim he annexed to his petition, a copy each of his examination transcript and of a document signed by an Assistant  B  Registrar of the University certifying that the applicant has passed the examination leading to the LL.B degree and stating that he would be graduating in October 1991.

Section 4 of the Act provides as follows:

     "Every person who applies to be admitted and enrolled as a legal practitioner shall produce to the satisfaction of the  C  court proof of the possession by him of the qualifications prescribed by this Act in respect of such admission and enrolment."

Mr. Marumo submitted that the assertions made in the petition together with the annexures were satisfactory proof of the possession by the applicant of the qualifications prescribed by the Act. As  D  far as this petition is concerned the qualifications prescribed by the Act are contained in section 7(c)(i) quoted above. There is no dispute that the applicant is a Botswana citizen. The question is whether he has "obtained" by examination the degree of LL.B from the University of Botswana. Incidentally, the reason for stipulating that the degree should have been obtained "by examination" is to make it abundantly clear that obtaining the degree honoris causa is not a qualification for  E  admission. The petition, supported by the two annexures previously referred to, asserts that the petitioner has passed the LL.B degree examination of the University of Botswana. But it is important to emphasize that the word used by the subsection is "obtained," and not "passed".

According to the Concise Oxford Dictionary "obtain" means "acquire, have granted one, get"; and  F  "pass" means "get through, satisfy examiner." In my opinion the ordinary meanings of the two words demonstrate quite clearly that the words are not synonymous. They convey two quite different meanings. A student may pass the examination leading to a degree, but that does not mean that he has obtained the degree. In my opinion, he obtains the degree when he receives a certificate regularly issued by the university certifying that the degree (in this case the LL.B) has been  G  conferred on him. Circumstances may arise after a student has passed the examination which may cause the university to refrain from conferring the degree on him. In those circumstances, the student would have passed the examination but would not have obtained the degree.

Mr. Marumo referred me to Ex parte Feetham 1954 (2) S.A. 468, a decision of the Natal Provincial Division, in which it was held that the intention of the legislature in the Admission of Advocates  H  Amendment Act, was that the relevant qualification for admission as an advocate should be the applicant's passing of the LL.B examination, and not "the extraneous act" of the university in conferring the degree. The relevant section of the Act construed by the court read inter alia: "has obtained by examination the degree of Bachelor of Laws from any university within the Union ..."


 

1991 BLR p323

LIVESEY LUKE CJ

  A It should be noted that the wording is almost identical with the wording of our section 7 (c)(i). A reading of the judgment in that case indicates quite clearly that the court was influenced by a long standing practice in Natal. After referring to the relevant rule of the Natal Rules of Court which empowered the court to admit to practise and enrol as an advocate any person who had, inter alia, obtained by examination the degree of Bachelor of Laws of any university, Holmes J. who delivered   B the judgment of the court, continued at p.469d:

     "In terms of that Rule, the practice in Natal was always to admit applicants who had passed the examination for such a degree, notwithstanding that the degree had not yet been conferred upon them. No application in Natal has ever been refused upon the ground that the Rule required something more than the passing of the examination,   C namely that the applicant should also have had the degree conferred upon him."

It seems to me that it was the long established practice in Natal that influenced the court, when construing the words "has obtained by examination the degree of Bachelor of Laws from any university" in the statute, to hold that the intention of the legislature was that the relevant qualification   D should be the passing of the LL.B. examination by the applicant and "not the extraneous act of the university in conferring the degree".

Having regard to the views that I have expressed above, I need hardly say that I do not, with respect, agree with that decision. I derive support for my views from three South African cases, namely Ex   E parte Ormonde 1940 C.P.D. 287, Ex parte Addleson 1948 (2) S.A. 16 and Ex parte Haddad 1954 (2) S.A. 568. In Ex parte Ormonde it was held that in view of the provision of section 20 of Act 16 of 1873 that persons who shall have obtained or been admitted to the degree of Bachelor of Laws are eligible to be enrolled as advocates of the Supreme Court, it is not sufficient for an applicant for admission to produce merely a certificate that he has passed the examination entitling him to be   F admitted to the degree in question. He must show that he has actually obtained or been admitted to the degree. In that case learned counsel for the applicant called in aid a practice under which applicants had been admitted on the mere certificate that they had passed the LL.B examination, and pleaded with the court to exercise its discretion in the applicant's favour. This is how Van Zyl J.P. who delivered the judgment of the court treated the plea, at pp.290-291:

  G   "But now that we have been asked to decide what the requirements are for an applicant's admission, and have definitely come to the conclusion that it is not sufficient for an applicant merely to have passed the LL.B examination, but that he should also have obtained the degree of LL.B before he is eligible for admission to the Bar, we cannot accede to Mr. Thompson's request as we have no discretion in the matter."

  H In Ex parte Addleson, the Eastern District Local Division, held that before a person was entitled to admission as an advocate he must show that he has obtained, has had conferred upon him, or has been admitted to, the necessary degree. In delivering the judgment of the court, Pittman J.P. said inter alia at pp.16-17:


 

1991 BLR p234

LIVESEY LUKE CJ

     "It seems to me clear from this enactment, that the condition, subject to which admission can be claimed is 'the  A  obtaining by examination the degree of Bachelor of Laws from any university within the Union'. It is to be noted that the condition in question is not merely the passing of the examination, but the obtaining of the degree. It is quite true that the statute speaks of 'obtaining by examination the degree', but this, I am confident, cannot be construed as meaning that by the passing of the examination and by that alone the degree must be regarded as being obtained."  B

It is of interest to note that Ex parte Haddad, a decision of the Transvaal Provincial Division, was decided in the same month as Ex parte Feetham, the former having been decided on 22 March 1954 and the latter having been decided on 3 March 1954. In Ex parte Haddad, the relevant statutory  C  provision under which the applicant petitioned for admission as an advocate prescribed as one of the qualifications for admission that the applicant "has obtained by examination the degree of Bachelor of Laws from any university within the Union." In his petition the applicant stated inter alia that he had "passed all the qualifying courses for the degree of Bachelor of Laws at the University of Witwatersrand" and attached a second document signed by the Registrar of the University which  D  certified inter alia that the applicant had completed all the requirements for the degree of Bachelor of Laws by passing the University examination, in the prescribed qualifying courses and specifying the date on which the degree will be conferred. Incidentally a similar certificate (Annexure C) was issued by the Assistant Registrar of the University of Botswana in the instant case. It was held in the  E  Haddad case that having regard to the statutory provision, an applicant for admission as an advocate cannot be admitted until the degree of Bachelor of Laws has been conferred upon him. In delivering the judgment of the court, Ramsbottom J. said inter alia at pp.569h-570:

     "The present applicant has not obtained the degree of Bachelor of Laws. He has passed the examinations that his university requires him to pass before it will confer degree upon him, but until the degree has been conferred he  F  has not obtained the degree. Although he expects that the degree will be conferred at the next graduation ceremony, and although the Registrar of the University certifies that the degree will be conferred, it may not be. But whatever the applicant's intentions are and however certain they are to be realised, the words of the statute are clear; an applicant for admission as an advocate must have 'obtained by examination the degree. . .' That means that he  G  must both have passed the examinations which his university prescribes and have obtained the degree. A degree is not obtained until it has been conferred and therefore, until the degree has been conferred on him the applicant does not possess the qualification which the statute requires."

The applicant in the instant case admits that the degree of Bachelor of Laws has not been conferred  H  upon him by the University of Botswana. According to annexure C it will be conferred in October 1991. The applicant may be anxious to join the honourable ranks of Attorneys-at-Law, but he is by law obliged to satisfy all the requirements laid down by law before he can be admitted as an


 

1991 BLR p325

  A attorney of this Honourable Court. In my judgment the applicant, not having been conferred with the degree of Bachelor of Laws of the University of Botswana, has not obtained that degree, and therefore he is not qualified for admission as an attorney of this Honourable Court. In the circumstances, I dismiss the application. In view of the fact that the application was not opposed, there will be no order as to costs.

  B Application dismissed.

M.S.S.

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