The judgment in Morgan v Minister of Justice and Others [2025] ZAGPPHC 1202 (11 November 2025) has reignited discussions about the distinction between attorneys and advocates in South Africa. The case revolved around the applicant’s challenge to sections 34(6) and 34(7) of the Legal Practice Act (LPA), which regulate the forms of legal practice for attorneys and advocates. The applicant, a trust account advocate, sought to have these provisions declared unconstitutional, arguing that they unfairly preclude advocates from practising as legal practitioners in incorporated law firms.
The Court’s decision
The court dismissed the application, finding no merit in the applicant’s constitutional challenges. The judgment emphasised the importance of maintaining the distinction between attorneys and advocates, as enshrined in the Legal Practice Act and the Code of Conduct for Legal Practitioners. The court held that the regulation of the profession, including the prohibition on advocates practising in incorporated law firms, is neither arbitrary nor unconstitutional. Instead, it serves a legitimate government purpose, including the preservation of advocates' independence and the maintenance of the rule of law.
Why the distinction matters
The distinction between attorneys and advocates is a cornerstone of South Africa’s legal system. Historically, attorneys and advocates have performed distinct roles within the legal profession, and this separation has been preserved under the Legal Practice Act. Attorneys are typically office-based professionals who engage directly with clients, handle administrative and preparatory work, and provide legal advice. Advocates, on the other hand, are court-based professionals who specialise in forensic skills, focusing on litigation and advocacy.
The court highlighted that the independence of advocates is a fundamental principle of the profession. Advocates are expected to act as independent practitioners, free from undue influence and bound solely to their clients' instructions. This independence is crucial for upholding the rule of law and ensuring the integrity of the judicial system. Allowing advocates to practice within incorporated law firms could compromise this independence, as they would then be beholden not only to their clients but also to the corporate entity and its obligations.
The role of trust account advocates
The Legal Practice Act introduced a new category of legal practitioners known as trust account advocates. Unlike traditional referral advocates, who receive instructions through attorneys, trust account advocates can take instructions directly from the public and operate trust accounts. However, the court clarified that the nature of their practice remains distinct from that of attorneys. Trust account advocates hold client funds in trust as principals, not as agents acting on behalf of their clients, a fundamental distinction from attorneys who manage trust accounts.
Public interest and the divided profession
The court underscored the public interest in maintaining a divided legal profession. This division ensures that administrative and preparatory work in litigation is handled by attorneys, allowing advocates to focus on their specialised craft of advocacy. The independence of advocates is essential not only for effective client representation but also for maintaining an independent judiciary, a cornerstone of democracy.
Conclusion
The judgment in the Morgan case reaffirms the importance of the distinction between attorneys and advocates in South Africa’s legal system. This separation is not arbitrary but is rooted in the differing roles and responsibilities of the two branches of the profession.
By upholding the provisions of the Legal Practice Act, the court has reinforced the principles of independence and specialisation that are vital for the effective functioning of the legal profession and the administration of justice. This case serves as a reminder of the unique and complementary roles that attorneys and advocates play in serving the public and upholding the rule of law.
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About the author
Johan van Stade’s passion for further education, training, and the law enables him to pass his expertise on to his students, especially those seeking deeper practical knowledge and understanding of the law. He is the presenter and co-author of the Attorneys' admission exam courses and co-presenter of the Course in notarial practice. Johan presents various PVT subjects and paralegal courses. He is an admitted attorney, conveyancer, and notary.
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Last updated on 12 January 2026.