TAFA v. ATTORNEY-GENERAL 1991 BLR 320 (HC)
1991 BLR 320 (HC)
High Court, Lobatse
August 16, 1991
Marumo for the appellant.
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).
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.
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.
for the applicant.
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 ..."
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
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 ..."
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)
1991 BLR p322
citizen or a citizen of a Commonwealth country who has obtained by examination
(i) the degree of LL.B from the University of Botswana
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."
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
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".
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.
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
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".
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
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
"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
"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
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
B Application dismissed.