From the early days of South Africa in the Cape until very recently, advocates –
- have been dealt with in legislation different from attorneys,
- have been admitted as advocates under legislation on proof of the attainment of a standard of education appropriate for a person with the right of appearance in the Supreme, and later, the High Court.
The purpose of the legislation has been to produce a class of lawyers who specialise in pleading cases in the High Court and giving legal advice, sometimes of a very complicated nature, to a high standard and appropriate for the High Court.
Each member of this class is required to –
- behave ethically,
- take work only from attorneys and not directly from clients,
- behave independently in the client’s interests, and
- accept as a client anyone in need of legal help.
The requirements for admission as an advocate have been laid down by legislation. Broadly stated, an applicant for admission as an advocate must prove to the High Court that he or she is –
- twenty one years old,
- a fit and proper person,
- duly qualified,
- a citizen of, or ordinarily resident under a permanent residence permit in, the Republic.
Over the years, advocates have formed associations of advocates throughout South Africa. Ten of these have formed an umbrella association called the General Council of the Bar (the GCB) of which they are members.
A newly admitted advocate may practise from the moment she or he has been admitted.
However an advocate may not practise as a member of the Society of Advocates of KwaZulu-Natal (the Society), or any other bar affiliated to the GCB, unless she or he has undergone a year’s training as a pupil and passed the GCB’s national bar examinations.
The Legal Practice Act, No 28 of 2014, when it comes into effect, will change the manner in which attorneys and advocates are governed. However the Act recognises advocates as a separate branch of the legal profession and it is suggested that there will always be a need for a class of properly trained independent, ethical and skilled advocates to present a person’s case in court.
TRAINING A PUPIL
The pupillage programme offered by the GCB is a very intensive course. Pupils are required to complete a workbook comprising some 400 pages. Pupils do not have time for other activities, although some may undertake casual employment outside pupillage hours during the early part of pupillage.
The pupillage programme entails –
- the study of an up-to-date syllabus produced each year by the GCB’s National Bar Examinations Board (NBEB) comprising judges and senior advocates,
- the pupils completing an up-to-date training manual comprising materials and exercises produced by the GCB,
- the pupils comparing the exercises in the manual completed by them with the model answers produced by the GCB,
- the sitting of examinations prepared by members of the bench and bar on behalf of the GCB,
- an oral examination by a committee of the GCB comprising representatives of the bench and bar,
- each bar interviewing applicants for pupillage and selecting those most suitable to fill the limited places available for the provision of training,
- each bar appointing an experienced mentor to each pupil who ensures that the pupil is trained in court work generally so that at the conclusion of pupillage the mentor is able to certify that the pupil has satisfied the following minimum requirements:
(i) the pupil has assisted actively, (from the stage of preparation for trial to the conclusion of the trial) in the preparation and conduct of :-
(a) three civil trials, of which at least one must have been in the Magistrate’s Court and one in the High Court;
(b) six criminal trials, of which at least one must have been in the Magistrate’s Court and one in the High Court;
(ii) the pupil has assisted actively in the settling of affidavits for, and in the preparation and presentation of argument in, two opposed applications (whether in the High or Magistrate’s Court);
(iii) the pupil has assisted actively in the preparation and conduct of two appeals (whether civil or criminal or both, and irrespective of the court appealed from or the court appealed to);
(iv) the pupil has gained reasonable experience in unopposed High Court motion work and unopposed divorce work;
(v) the pupil has received adequate instruction and is familiar with the ethics and traditions of the profession and the rules of the Society;
- each appointing silks to oversee groups of approximately four pupils.
- each arranging experienced lecturers to give the pupils lectures/tutorials for a period of twenty four weeks starting in the first week of February on the following themes, where the syllabus on each subject is detailed, comprehensive, and aimed at the core competencies of an advocate which are different from those of an attorney –
o Civil Trials,
o Legal Writing,
o Criminal Procedure,
o Motion Court,
- the GCB training trainers to train the pupils in the practical aspects of advocacy in court,
- each bar arranging its trainers to train the pupils in these practical aspects of advocacy in parallel with the more theoretical aspects mentioned above,
- the GCB arranging and each local bar marking trial examinations written in July,
- each bar arranging the writing of the GCB’s NBEB-set examinations in August which examine the pupils’ knowledge of the core competencies referred to above,
- the NBEB marking the examination scripts, and conducting oral examinations if necessary.
- The training lasting from 15 January to 31 December each year.
The value of this training lies in it being conducted by practising advocates experienced in court advocacy and the art of persuasion and who have the necessary knowledge and experience of the esoteric nuances and influences implicit and the responses necessary in court advocacy.
THE PUPILLAGE YEAR
Pupillage begins on the 15th January of each year.
- From 15 January to early July, pupils attend lectures/tutorials, complete written exercises contained in the workbook, participate in practical advocacy training exercises, and assist in trials, applications, appeals, etc.
- Pupils prepare for and write the trial examinations in mid-July.
- Pupils prepare themselves for the National Bar Examination, written in mid- August, on the subjects of the core competencies of an advocate mentioned above,
- Those pupils narrowly missing pass marks might undergo written and oral examinations in September.
- For those who have passed the examinations, an Advanced Advocacy Training course is presented in November; and
- In December there is further mentoring, assistance in trials etc. and preparation for practice.
Pupillage is very intensive and closely supervised by our pupillage committee, pupil supervisors, pupil mentors, pupillage instructors and advocacy trainers. Pupil supervisors are Silks who meet periodically with pupils to ensure that they are properly mentored and fulfil all pupillage requirements. Pupil mentors are members who have practised for no less than five years and each takes on a pupil allocated to him/her. Pupillage Instructors are senior members who present lectures in Legal Writing, Motion Court Practice and Procedure, Ethics, Criminal Procedure and Evidence and Preparation for and Conduct of Civil Trials in both the High Court and Magistrate’s Court. Advocacy trainers do what their name suggests.
All these people are in practice and unpaid. There is no remuneration for pupils.
Pupils must be in chambers and with their mentors all and every work day.
During pupillage, pupils are entitled and encouraged to appear in court with their mentors and other members of the bar approved by each pupil’s mentor.
For the first six months, pupils may take up part-time or casual employment provided that the employment activities are restricted to evenings and weekends. The Bar Council, however, may require a pupil to limit or terminate part-time activities in the event of these interfering with pupillage. After the six months, no remunerated employment is permitted other than in unopposed matters.
After the first six months of pupillage and provided the pupil has passed the trial exams, performed most of the required active assistance in trials, applications and appeals, and the pupillage committee has issued a certificate permitting the pupil to appear on brief for a fee in unopposed matters independently of the pupil’s mentor but subject to the mentor’s supervision, the pupil may so appear. These appearances are subject to conditions set out in the certificate.
Once a pupil has passed the GCB examinations and the requirements relating to active assistance in trials, applications and appeals, a pupil may obtain a certificate permitting him or her to appear on brief for a fee in all matters save those before the Supreme Court of Appeal and the Constitutional Court, independently of his or her mentor but subject to the mentor’s supervision. These appearances are subject to conditions set out in the certificate.
The pupillage programme does not provide for leave to be taken.
APPLICATION FOR PUPILLAGE
Any person who wishes to undergo pupillage must lodge an application on or before 30 September of each year by completing the Application Form and submitting the form to the centre at which he/she intends to practise, namely:
The Administrative Officer, 3rd Floor, 6 Durban Club Place, Durban 4001, Telephone : 031-3013099, email firstname.lastname@example.org
The Administrative Officer, Advocates Chambers, 17 Prince Edward Street, Pietermaritzburg, 3201, Telephone 033-8453547, email email@example.com .
No applications received after 30 September will be considered.
Interviews with aspirant pupils will be conducted during October and November, in Durban or Pietermaritzburg depending on where the applicant has applied to do pupillage. Applicants are notified in approximately the second week of November in the year preceding pupillage whether their application has been successful.
The Society’s Constitution extends pupil membership to people who have lodged their applications for admission to the roll of advocates before 15 January in the year of pupillage. The pupils should ideally have their applications ready for lodgement at court in the second week of November in the previous year.
The selection procedure for pupils is broadly as follows.
The pupil completes the application form with personal details, provides two references and some details about his or her experience, and states facts to show that he or she may be admitted as an advocate. An undertaking to lodge an application for admission before 15 January the next year, and to be bound by the bar’s and the GCB’s constitutions and rules must be provided. The application is accompanied by –
- a copy of his or her Identity Document/Card,
- a copy of his or her Degree Certificate(s),
- a copy of his or her detailed academic record,
- his or her Dean’s testimonial, if possible.
The number of trained advocates practising in Durban and Pietermaritzburg is governed by the demand for their services from the public, through and on the advice of their instructing attorneys, so that an over-supply of advocates will lead to natural attrition.
We believe that –
- it is in the public interest to have a corps of independent advocates, and
- the strength of our bars’ training is that it is conducted by experienced practising advocates.
The process of selecting applicants for the pupillage programme is undertaken by a pupillage committee comprising two members of the bar. In considering applications for pupillage, the committee works towards the goal that the members of the bar are representative of the demographics of the country. The committee considers all of the written applications and prepares a shortlist of applicants to be interviewed.
The interview committee will approach the interviews with the following knowledge of the actual situation in which the majority of young or new advocates starting out will (rightly or wrongly) find themselves –
- A client wishes to win his or her case and this desire usually determines who will be instructed on the client’s behalf.
- Reputation and contacts are accordingly important in attracting briefs from attorneys.
- It takes time to acquire a reputation and clients.
- Advocates have to rely on income generated from their efforts alone, unassisted by fees earned by others, such as partners in an attorneys’ firm.
- State or semi-state sources of work are significant consumers of advocates’ services, especially young and new advocates, but these sources are notoriously slow payers.
- Young or new advocates are also in a very weak position in enforcing payment by attorneys who owe them fees, and some attorneys are quick to take advantage of this weakness.
- Tardy payment of fees causes great difficulty in young or new advocates’ early professional lives.
- The aim of all the training is to produce an ethical and independent class of practitioners who specialise in pleading cases in higher courts, and giving legal advice, sometimes of a very complicated nature, to a standard appropriate in the those courts.
- Apart from the time it takes – up to two years – it takes presence, oral dexterity, cleverness, some court experience, some connections or some other support, and especially, courage and spirit, to get through the pupillage training described above and to gain a toehold in the profession.
- We estimate that the number of our available members who have practices and experience qualifying them sufficiently to mentor are about sixty in Durban, and twenty in Pietermaritzburg. We think that a mentorship every three years is the most we can expect a junior qualified by practice and experience to undertake.
- Practitioners who lecture and tutor the pupils do so out of altruism, and thus the same mentors and advocacy trainers should not be called upon to perform these functions too frequently.
- The advocacy program ideally requires groups of four pupils. Thus we can effectively handle about twenty pupils in Durban and eight in Pietermaritzburg. At present we are limited to sixteen in Durban and six or seven in Pietermaritzburg.
- Our experience is that a candidate who passes the pupillage training, but does not have in sufficient degree qualities of presence, oral dexterity, cleverness, some court experience, some connections or some other support, courage and spirit, may struggle to establish himself or herself in practice, and may leave the bar after a short, unhappy, period.
- Selecting applicants who are talented but with insufficient experience may be a disservice to those applicants, because it may lead to them failing at the bar. We encourage these people to gain more experience conducting court cases before applying again.
- Lack of experience and/or contacts, are not, however, absolute bars to selection.
We believe in, and select on, the principles that –
- The interview committee must be satisfied that a candidate will be able to get through pupillage training.
- The interview committee must, generally but not always, be satisfied that a candidate has, combined in sufficient degree to establish himself or herself in a nascent practice, the qualities of –
- oral dexterity,
- some court experience,
- some connections or some other support,
- courage, and
The interview committee interviews all the applicants and each member makes individual notes. We do not have a points system for selections.
During our interviews we –
- ask the candidates to explain why they want to be advocates,
- probe their academic records,
- probe their actual experience of advocacy work,
- probe why they think that attorneys will brief them rather than taking the case themselves,
- probe their means of support for pupillage and the few years of practice then following,
- observe them operating in what is, for them, a stressful situation,
- explain to those with no experience at all that although some of them have every quality otherwise necessary to be an advocate, their lack of experience will militate against their succeeding, and advise them to seek experience in articles of clerkship, prosecuting or the like before applying again.
After all the interviews, the interview panel meets again and ranks the candidates from strongest to weakest. We then select the successful applicants and then, a number of reserves, in case a successful applicant does not take up our offer of a place on the programme.
The pupillage committee then sends appropriate letters to all the candidates.
BEFORE YOU APPLY YOU SHOULD RE-READ THE FOREGOING VERY CAREFULLY, AND DECIDE WHETHER YOU SHOULD APPLY OR ACQUIRE EXPERIENCE IN CONDUCTING COURT CASES TO ENHANCE YOUR PROSPECTS OF SUCCEEDING AS AN ADVOCATE.
IN YOUR APPLICATION FORM, YOU MUST GIVE FULL DETAILS OF YOUR EXPERIENCE IN CONDUCTING COURT CASES.
The Bar Council may, on application, exempt an applicant from part of the pupillage course.
In making application for an exemption, an applicant should provide the Bar Council with details of that part of the course from which the pupil seeks exemption, and details, with supporting documentation, of the experience that the pupil has which, it is contended, justifies such exemption.
No-one may be exempt from the requirement of having to sit and pass the National Bar Examination and no-one may be exempt from the requirement of having to perform satisfactorily in the Advanced Advocacy Training programme.