In our modern society and under our present constitutional dispensation, just about every aspect of our daily life - from the cradle to the grave - is regulated to a lesser or greater degree by the laws of our country. Each one of us comes into contact with the law on a frequent basis, whether it be for drawing up a will or a contract, getting married or divorced, paying or collecting debts, buying a house or a new motor car and appearing in a civil or a criminal court. Because not everyone is versed or trained in law, the legal profession is there to assist all the members of our society in this regard. In the private sector we have two basic kinds of legal practitioners - they are traditionally referred to as either advocates or attorneys, also under the new Legal Practice Act No. 28 of 2014.
Difference between attorneys and advocates. The distinction between the profession of attorney and advocate in South Africa mirrors the distinction between the profession of solicitor and barrister in other Commonwealth countries, with attorneys having broadly equivalent roles to solicitors and advocates having broadly equivalent roles to barristers. Although both professions provide legal services, they do so in different ways. As a rule an attorney is more of a general practitioner, standing in a direct relationship with his or her clients and either assisting them with legal advise or providing them with a wide range of legal services. An attorney is the first port of call whenever one is in need of any legal services or if one has a legal problem that needs to be addressed. Accordingly an attorney needs to be readily accessible to everyone and the services he or she provides, need to be broad enough to cover a wide field of legal matters. To cater for these needs, some attorneys form partnerships or establish incorporated legal firms. An advocate is more of a specialist practitioner and provides his or her services by way of specialised expertise in various areas of the law - sometimes by providing an opinion on a legal issue but especially in the presentation of cases in court. The profession of an advocate is what is known as a referral profession because an advocate provides his or her services only upon referral of a matter by an attorney. An attorney therefor engages, or contracts for the services of, the advocate so that the advocate stands in an indirect relationship with the clients of the attorney. This mandate or instruction, normally given in writing by the attorney to the advocate in a particular matter, is called a brief. Advocates accept briefs only from attorneys and not directly from members of the public.
Societies of Advocates.
Most advocates practising in the private sector are also organised into societies or voluntary associations in the major centres in South Africa. Such a society or voluntary association of practising advocates is traditionally referred to as a Bar. Apparently this tradition started in the United Kingdom when the newspapers of Fleet Street referred to barristers (the English equivalent of an advocate), then starting to appear in criminal courts in defence of an accused, as "the Gentlemen at the Bar". This "Bar" was a reference to the copper bar or railing in front of the accused in the dock, next to which his or her defender stood.
These Bars are in essence fraternities of men and women who practise as advocates in the cities where the Bars are situated. As a body representing the advocates' profession, the main purpose of the Bar is
- to provide advocates with the necessary infrastructure and support services, enabling them to practice;
- to maintain professional standards and conduct among practising advocates, and sometimes to enforce discipline amongst its members; and
- to provide training for aspiring advocate at the beginning of their careers.
Historically the Bar was also the institution by means of which advocates regulated their own profession but under the new Legal Practice Act No. 28 of 2014 this function will, to large extent, be taken over by a statutory body. The Bar itself continues to enforce a strict code of ethical conduct and of professional integrity, a code to which all advocates are required to adhere.
The Bar has a long history and a number of longstanding traditions. One of those traditions is that members are always ready to assist another member and it is not unusual for the most junior member of the Bar to approach a senior member for advice with any problem of practice that he or she might encounter. Becoming a member of the Bar thus opens up the door for an aspiring advocate to the collective knowledge, wisdom and experience of all the members of the Bar. Life at the Bar also has a social side to it.
Practice of an advocate.
Advocates are primarily experts in the art of presenting and arguing cases in court. Until 1994, only advocates were allowed to present cases in the High Courts of the various provinces, which were then known as Supreme Courts, and the Appeal Court in Bloemfontein, now known as the Supreme Court of Appeal. Attorneys with a so-called right of appearance may now also appeared in these courts as well as the Constitutional Court. The vast majority of cases in these courts are, however, still presented by advocates and some advocates also appear on a regular basis in Magistrates' courts as well as before various statutory bodies (such as land-use planning committees, tax courts and other specialised tribunals). This requires a mastery of law and of the facts of the case, good judgment and the ability to present a case clearly and coherently.
Advocacy is in essence the art of persuasion. Not only must an advocate be able to communicate effectively, he or she must also conscientiously prepare every case: by reading up on the law, by knowing and understanding the facts of a case, by seeking advice and by clearly defining the issues which need decision. Advocates also give legal opinions and help with the drafting of legal documents that are required in every walk of life, be it commercial, industrial or domestic. An important part of the work of an advocate is providing legal assistance to needy clients by way of pro bono, pro deo and amicus curiae appearances in court - in these instances an advocate is working for the good of society a reduced rates and in some cases without remuneration.
Every advocate practises individually in his or her own name. The ethical rules for advocates do not allow them to practise in partnership or through a legal entity such as a company or a close corporation. An advocate renders his or her services individually and takes personal responsibility for his or her decisions in the course of doing so. An advocate is by definition a person of honour and self-discipline. He or she is duty-bound to practise without fear or favour.
Importance of advocates.
Legal representation in the courts is a fundamental right of all South Africans. It is vital that such legal representation should come from, and be available to, as broad a cross-section of our South African Society as possible. This legal service is essential for every citizen, rich or poor, weak or powerful. Everyone is equal before the law and everyone is to be protected from the tragedy of incorrect prosecution or of unjust treatment by others. It is also essential in the establishment of a just and fair society. It is the duty of an advocate to use his expertise to ensure that peoples' freedom is in no way compromised nor their rights denied.
An important tradition which exist at the Bar is the obligation on every advocate to take all briefs (or work) offered to him or her by an attorney, provided
- that he or she is available to do that work,
- that the work required falls within his or her area of expertise, and
- that there is no conflict of interest for the advocate in accepting the brief.
In this way, everyone has access to the best available services, irrespective of the merits of the case.
Through the provision of their legal services to individuals, advocates also contribute to the maintenance of law, order and the legal system of dispute resolution for the greater good of society. Our modern society does not tolerate anyone taking the law into his or her own hands. From this broader perspective the role and responsibility of advocates also support the independence of the judiciary, which in turn is part of the foundation for our free and open democratic constitutional dispensation.
Rewards of becoming an advocate.
Advocacy is a career that gains great respect from the community. The provision of legal services to fellow citizens also offers advocates a sense of personal satisfaction not easily found in other career choices. In addition, the financial benefits are comparable to those enjoyed by other professions.
When advocates have reached a particular level of experience and standing in practice, they are entitled to apply to the President for appointment as a "Senior Counsel". That appointment is done by way of a Letter Patent, personally signed by the President, and entitles the senior advocate to write the letters "SC" (the abbreviation for Senior Counsel) after his or her name. All other advocates are known as junior advocates. The robes or court attire of a senior advocate also differ from that of a junior advocate. Sometimes the Senior Counsels are referred to as "the silks" due to the custom of especially the senior barristers in England (the QC's or Queen's Counsel) to wear the robes or court attire of a senior counsel made out of silk.
Another tradition of the Bar is the gift of a red bag. Every advocate is entitled to buy a blue velvet bag in which to carry his or her robes or court attire to court. When a junior advocate is briefed on a matter together with a senior advocate and the senior advocate is satisfied that the junior advocate has commended him or herself in the profession so as to warrant recognition for excellence or for going above and beyond the call of duty, he or she is commonly rewarded with a traditional gift of a red velvet bag. This red bag, which no advocate should buy for himself or herself, is an award coveted by junior advocates
Judges of the High Court are often appointed from the ranks of Senior Counsel. One of the most important functions of the Bar is therefore to serve as a training ground for a career as Judge on the High Court Bench.
Requirements to become an advocate.
The basic requirement for admission as an advocate is an LLB degree of any South African University. Having obtained this, the next step is to apply to the High Court to be admitted as an advocate and be included on the "roll of advocates", kept by the Department of Justice. To do this, the applicant and aspiring advocate must satisfy the High Court that he or she is both qualified and able (in the sense of being a fit and proper person) to become a member of the profession. Once the applicant is admitted as an advocate, he or she will be entitled to practise as an advocate anywhere in South Africa and to appear in any court. After admission, however, it is customary to join one of the Bars to benefit from the strong collective spirit and experience of the legal fraternity in a Society of Advocates. This custom is expressed by saying that an advocate is called to the Bar: the profession of advocate is not the mere pursuit of an occupation but a calling, and practising at the Bar becomes a way of life. In order to become a member of the Bar, the advocate has to serve an apprenticeship (called a pupillage) of one year. During this year the Bar provides training and learning opportunities to the advocate, preparing him or her for the rigours of practice and informing the advocate about
- the professional standards and conduct among practising advocates, and
- the code of ethical conduct and of professional integrity to which all advocates are required to adhere.
After such a year of pupillage, the advocate will then have to pass the National Bar Examination of the General Council of the Bar before becoming a member of the Bar.
General Council of the Bar. The General Council of the Bar is in effect an association of all the Bars in South Africa. The members thereof are not individual advocates but the various Societies of Advocates from the major centres in South Africa. This is the main body representing and regulating the advocates' profession on a national level.
General remarks. This overview concentrated on the profession of practising advocates and members of the Bar in the private sector. Some advocates elect to practise without becoming members of a Bar but then they do not have access to all the privileges, support and fraternity available for members within a Bar. There are also advocates in the private sector who do not practise in the courts but are mostly employed as legal advisors in firms or companies. In the public sector, State Advocates are employed as public prosecutors by the National Prosecuting Authority and some advocates are also employed as advisors in various organs of state or state departments.
Further enquiries of any nature will be answered by writing to or telephoning:
The Executive Secretary
General Council of the Bar of South Africa
The Honorary Secretary
PO Box 2260
Private Bag X480
Tel: 012-303-7400 (switchboard)
Fax: 012-303-7890/1 (general)
The official website of the General Council of the Bar of South Africa is sabar.co.za.
[Note: This document is based upon a brochure called "A career as an Advocate" published by the General Council of the Bar of South Africa for the information of those considering a career as an advocate.]