KwaZulu-Natal Bar

The origins of the Natal Bar, as it was then known, as a purely consultative branch of the legal profession are described in the tribute to Graham Mackeurtan in the preface to the 1943 volume of the Natal Provincial Division Law Reports.

Until the early 1920’s the method of practising known as the dual practice had prevailed in Natal. There were two roles, one of advocates and one of attorneys but anyone on either role (and there were many who were on both) was entitled to appear before the superior Courts. In fact a study of the earlier volumes of the Natal Law Reports indicates that there were members of the profession who specialised in appearing in Court and from the arguments their learning appears to have been fairly formidable.

By far the most famous member of the Natal legal profession in those days however achieved his fame in fields other than the law. He is M K Ghandi whose name appears on the roll of advocates and who occupied chambers in a building on or near the site of the present Salmon Grove Chambers where a substantial number of advocates in KwaZulu-Natal now have their chambers.
In the early 1920’s a small number of the members of the legal profession led by Mr Graham Mackeurtan decided to practise only in a consultative practice. It appears from what was said by the Judge President Mr Justice Hathorn on the occasion of the tribute to the late Graham Mackeurtan that those members were, apart from Graham Mackeurtan and the Judge President then Mr Roy Hathorn KC, that the other members who decided to take this step were Mr Arthur Carlisle KC and Mr Edmond Selke KC both of whom were later judges of the Natal Provincial Division. They were joined by some other pioneering spirits and as appears from what was said by Mr JJL Sisson in the Bar’s tribute to the late Mr Mackeurtan, in March 1923 those practising in that manner were established in Temple Chambers, a building which now houses the offices of the Registrar of the Durban and Coast Local Division.

Although described as a local division of the Supreme Court the Durban and Coast Local Division in those days was in fact very much a subsidiary division of the Natal Provisional Division. The Registrar of the Durban and Coast Local Division, for instance, was described as the Assistant Registrar, as the Registrar was the Registrar of the Natal Provincial Division and the Registrar of the Durban and Coast Local Division was strictly speaking his assistant. Although a very great deal of work and in fact probably by the 1930’s the majority of the larger civil trials were done in Durban, the Natal Provincial Division remained the focus of the Supreme Court in the Province of Natal. Much of the criminal work was done by the Natal Native High Court until its abolition in the 1950’s (the civil jurisdiction of the Native High Court had been abolished in the late 1920’s). There were therefore very few criminal sittings of the Supreme Court in Durban and circuits of the Supreme Court came into being only on the abolition of the Native High Court. The civil sessions of the Durban and Coast Local Division were more frequent but by no means continuous throughout the year.

The development which had taken place in Durban led by Mr Graham Mackeurtan also took place in Pietermaritzburg where Mr Roy Hathorn practised. The Pietermaritzburg Bar was established in Law Society Chambers after the appointment of Roy Hathorn to the bench, Mr Frank Broome, later Judge President of Natal, was the leader of the Pietermaritzburg Bar.

In 1932 the position of having an advocate’s profession as a purely consultative profession was dealt with by rules of Court. Until then it had been an entirely voluntary arrangement. Mr Justice Feetham had been sent from the Transvaal to the be Judge President of the Natal Provincial Division and was apparently very unfavourably impressed by the dual practice system, and possibly by the performance of some of the dual practitioners, though it must be said that many of them were very competent. In consultation apparently with Mr Mackeurtan he then caused rules of Court to be passed governing the position with regard to the dual practice. The validity of the rule was challenged by Mr Stuart and Mr Geerdts the former being on the roll of attorneys, the latter on the roll of advocates. The case went to the Appellate Division and is reported in 1936 AD 418. The validity of the rule was upheld In both the Natal Provincial Division and the Appellate Division, perhaps not surprisingly in the Natal Provincial Division where the main judgment was delivered by Feetham JP with Hathorn J and Matthews J concurring.

Thereafter the dual practice in Natal was in a state of steady decline. Some dual practitioners continued to appear fairly frequently well into the 1950’s but they were very few and far between.
The Society of Advocates of Natal had been brought into being and nine members adopted its formal constitution in the May 1929. Mr William Burne KC was the first chairman. Apart from the years 1939 to 1945 the number of advocates in practice in KwaZulu-Natal has continued to increase. At present there are 45 senior counsel (36 in Durban and 9 in Pietermaritzburg), 200 junior counsel (164 in Durban and 36 in Pietermaritzburg) as well as 11 associate members.

The relationship between the Society on the one hand and the government and bureaucracy on the other hand has not always been a smooth one. This must necessarily be the case with any body of independent practitioners. The Society had a long and protracted struggle with the Group Areas with regard to obtaining chambers for Mr Hassen Mall, which was eventually successful and which meant that Mr Mall could hold chambers along with other advocates in the same building.
Relationships with the Natal Law Society which had been considerably strained when the rules were passed in 1932 gradually improved and by the endeavours of the respective chairmen of the two societies of whom Mr Leo Caney, Mr Dennis Fannin and Mr AB Harcourt deserve special mention on the side of the Society of Advocates and Mr Michael Gallwey and Mr Walter Chaplin on the side of the Natal Law Society deserve special mention the stage was reached where the profession in Natal could in effect speak with one voice.

Members of the KwaZulu-Natal Bar have made significant contributions to the development of law and the administration of justice in the country. For example, its members were responsible for drafting the core of what is now the Uniform Rules of the High Court and the Admiralty Jurisdiction Regulation Act while others made significant contributions over the years to the development of post-apartheid laws such as current labour laws.

That tradition has continued and in the last few years significant numbers of senior and junior counsel have volunteered their time during recess to assist the office of the National Director of Public Prosecutions reduce the backlog in criminal appeals by acting as advocates for the state, the accused and as judges.

At present, four former members of the KwaZulu-Natal Bar serve as judges on the Constitutional Court while other members serve in this and other provinces as judges in various divisions of the High Court.

D J Shaw QC
Member of the KwaZulu-Natal Bar