A practical, constitutional and human argument for recognising prosecutorial experience.
Author’s note on legal accuracy: This article is an advocacy and policy argument, not a statement that the present law already gives every state prosecutor an automatic right to admission.
The argument is that the Legal Practice Act (LPA), its regulations and the Constitution provide a credible legal and regulatory basis for recognising substantive prosecutorial experience, and that the current framework should be applied and developed in a way that avoids unnecessary professional exclusion.
The career trajectory of Thersia A. Du Toit-Smit highlights the systemic absurdity of this framework. A veteran litigator who obtained her B-Iuris in 1995 and has served as a State Advocate since 2006 and a Senior State Advocate since 2007, Du Toit-Smit completed her LLB in June 2020.
My journey from prosecutor to advocating for neurodiversity rights and the continuing fight for fairness, recognition and equal opportunity.
1. Introduction: When a change in the law becomes a career dead end
The Legal Practice Act 28 of 2014 was intended to do something important: to transform and restructure South Africa’s legal profession, create a single regulatory framework, broaden access to the profession and remove unnecessary barriers to entry. The LPA came into operation on 1 November 2018, and with it came a new admission regime built around admission by the High Court, practical vocational training, competency requirements and enrolment through the Legal Practice Council.
The intention behind that reform is understandable. The public deserves competent, ethical and properly trained legal practitioners. But there is a difficult question that deserves far more attention: what happens to a prosecutor who has spent years doing the very work that the legal profession requires, but who happens to have completed the LLB at a point that places them on the wrong side of the transitional divide?
For some state prosecutors, particularly those who completed their LLBs after the commencement of the LPA, the system can create a painful catch-22. They may have spent years appearing in court, conducting trials, drafting indictments and legal opinions, advising investigators, handling complex criminal matters and exercising independent prosecutorial judgment. Yet they may still have to step out of the public service and start again through a private practical vocational training route merely to obtain formal admission and enrolment.
That is more than a career inconvenience. It has consequences for professional retention, institutional knowledge and the public interest. When experienced prosecutors feel that the only way to progress is to leave the state, the system risks losing precisely the people it has invested in training.
My own professional journey illustrates why this issue matters. I began my career in the Department of Justice as a Clerk of the Court in 1990, completed my B.Iuris in 1995 and entered prosecution. I progressed to senior prosecutorial work and later completed my LLB in June 2020. I have spent decades working in criminal litigation and complex investigations. The question is therefore not whether practical legal experience matters. It plainly does. The question is whether our regulatory framework is willing to recognise it fairly.
2. The constitutional question: is the current framework rational and fair?
The argument is not that every prosecutor should simply be admitted because he or she has worked in a criminal court. Admission must remain a serious process. Fitness and propriety, competence, ethics, education and appropriate training must matter.
The constitutional concern arises when relevant experience is treated as if it has no value at all. Section 22 of the Constitution protects the freedom to choose a trade, occupation or profession, subject to regulation by law. Section 9 protects equality. Those provisions do not create an automatic right to admission, but they do require professional regulation to be rational, justifiable and consistent with constitutional values.
The real question should therefore be: is there a rational reason for treating substantial, supervised prosecutorial litigation experience as fundamentally different from other recognised forms of practical legal training, without properly assessing what the prosecutor has actually done and learned?
A prosecutor who regularly conducts trials in the Regional or High Court, deals with appeals to the SCA and the CC, prepares witnesses, deals with evidentiary objections, drafts indictments and applications, makes representations decisions, guides investigations and presents legal argument is not simply gaining theoretical exposure to litigation. That is legal practice in a very real sense.
The answer may still be that additional training is required. But additional training is not the same thing as ignoring existing competence. A fair system should identify the gap, measure it and require the applicant to close it, rather than treating years of relevant public-service litigation as if they never happened.
3. The LPA itself recognises that prosecutorial experience has legal value
This is where the argument becomes particularly important. Section 25(3)(b) of the LPA allows an attorney seeking the right of appearance in the High Court, the Supreme Court of Appeal or the Constitutional Court to rely on 'appropriate relevant experience'. The regulations made under the Act expressly recognise service as a prosecutor as one form of experience that may qualify as appropriate relevant experience, provided the prescribed requirements are met.
That is significant. The legislature and regulatory framework have already acknowledged that prosecutorial service can develop the kind of experience relevant to higher-court advocacy. The principle is therefore not foreign to the LPA: prosecutorial work can have professional value.
The difficulty is the apparent disconnect between recognising prosecutorial experience for advanced rights of appearance and failing to provide a sufficiently accessible route for experienced prosecutors to have their existing practical competence assessed for admission in the first place.
That disconnect deserves to be examined carefully. It does not mean that the LPA currently says that a prosecutor is automatically entitled to admission. It means that the legal framework already contains a recognition of prosecutorial experience, and that recognition should inform the development of a rational and proportionate admission pathway.
4. The practical equivalence problem
Let us put the issue in practical terms.
- A senior prosecutor may conduct complex criminal trials on a daily basis, including matters involving serious commercial crime, corruption and organised crime.
- Prosecutors draft indictments, applications, legal opinions and other court documents, and may prepare matters involving the Supreme Court of Appeal, the Constitutional Court or the Asset Forfeiture Unit.
- Their work is performed within a structured institutional environment, with supervision, performance agreements, measurable outcomes, prosecution policies and accountability mechanisms.
- A candidate legal practitioner in private practice, by contrast, may receive excellent training, but the actual exposure to litigation can vary substantially depending on the practice and the work allocated.
- The LPA regulations already provide for practical vocational training through approved institutions, including Legal Aid South Africa and other institutions approved by the Council.
- The structured coursework requirement for advocates is substantial and includes a minimum of 400 notional hours. That requirement is legitimate, but it does not follow that every experienced prosecutor has to repeat every component of practical training from the beginning.
This is where a competency-based approach makes sense. If a prosecutor can demonstrate competence in the practical areas already mastered, the focus should be on identifying the genuine gaps, for example, civil practice, trust administration, bookkeeping or other areas outside the prosecutor’s ordinary mandate, and then providing targeted training in those areas.
5. The Legal Aid comparison deserves serious consideration
The regulations also create an important comparison with Legal Aid South Africa. Practical vocational training may be undertaken by candidate legal practitioners employed by Legal Aid South Africa, as well as by certain other Council-approved institutions. For pupils seeking admission as advocates, the regulations likewise recognise advocates employed by Legal Aid South Africa and other approved institutions as possible supervisors.
The point is not that Legal Aid lawyers and prosecutors perform identical jobs in every respect. They do not. The point is narrower and more important: both environments can involve intensive criminal litigation, court work, legal research, drafting, client or witness interaction and professional responsibility.
If the regulatory system can recognise institutional criminal-litigation training within Legal Aid as a legitimate setting for practical vocational training, it is reasonable to ask why a comparable, properly structured prosecutorial training environment could not also be accredited and assessed.
That is the 'Legal Aid inconsistency' at the heart of this argument. The solution is not to lower the standard. The solution is to apply the standard consistently.
6. What about the role of the High Court and the LPC?
Admission remains a judicial function. Section 24 of the LPA provides that a person may practise as a legal practitioner only if admitted and enrolled in terms of the Act, and the High Court must admit a properly qualified applicant who satisfies the statutory requirements, including being a fit and proper person.
The LPC has an important regulatory and administrative role, including enrolment and the administration of practical vocational training. The courts have made it clear that the High Court is central to the admission decision, while the LPC performs the statutory enrolment function.
In Ex Parte Mokoena, the court explained the relationship between admission by the court and enrolment by the LPC. Ex Parte Goosen also provides an important example of the appropriate formulation of an admission order under the LPA: the court admits the applicant as a legal practitioner and authorises the LPC to enrol the applicant in the appropriate category.
These cases do not mean that the LPC has no role, or that every experienced prosecutor must be admitted. They do, however, reinforce an important principle: admission is ultimately a matter for the court, applying the statutory requirements, while the LPC performs the regulatory enrolment function assigned to it by the legislation.
7. A practical solution already exists: accredit the NPA as a training environment
The most constructive part of this debate is that we do not necessarily need to reinvent the entire system.
The LPA regulations already contemplate practical vocational training through institutions approved by the Council. That creates an obvious route for the National Prosecuting Authority to seek recognition as an approved training environment, subject to the requirements and oversight of the LPC.
A practical roadmap could include the following:
- The NPA should formally engage with the LPC regarding accreditation of suitable NPA offices or units as approved practical vocational training environments.
- Appropriately experienced senior legal practitioners, including suitably qualified advocates or attorneys, should be identified as training supervisors where the regulations permit.
- Existing NPA performance and supervision structures should be mapped against the competencies required by the LPA regulations.
- Prosecutors should receive structured exposure to any areas of practice that fall outside their ordinary prosecutorial functions.
- The training should be documented through measurable competencies, rather than simply counting time served.
- Each applicant should be assessed individually. Years of service should not automatically equal admission; demonstrated competence should.
This approach protects the public because it does not dilute standards. It strengthens them. It would create a transparent pathway in which an experienced prosecutor can demonstrate what he or she already knows, complete the training that is genuinely necessary, and then approach admission without having to abandon a public-service career merely to start again elsewhere.
8. The Minister also has an important role
Section 94 of the LPA empowers the Minister to make regulations on matters identified by the Act, including appropriate relevant experience for purposes of section 25(3)(b) and practical vocational training requirements under section 26(1)(c). That regulatory power is important because it provides room for the system to respond to practical realities without necessarily dismantling the entire statutory framework.
The broader policy discussion about a recognised 'State Legal Practitioner' category also deserves serious consideration. Such a category would acknowledge the reality that public sector lawyers perform sophisticated litigation and legal work within a distinct institutional environment.
A properly designed State Legal Practitioner pathway could preserve professional standards while recognising the particular nature of government litigation. It could also improve retention within institutions such as the NPA and reduce the unnecessary loss of experienced prosecutors to the private sector.
9. This is ultimately about people, not paperwork
There is a tendency in professional regulation to focus on forms, periods of service, certificates and prescribed routes. Those things matter. But behind every application is a person who has invested years of study, work and public service.
A prosecutor who has spent ten, fifteen or twenty years serving the public should not be told that none of that experience counts simply because the person's qualification was completed at the wrong time in the legislative transition.
Equally, the answer cannot simply be: 'You have experience, therefore you do not need training.' That would be equally wrong. The better answer is to ask what the person has actually learned, what the person can actually do, what remains to be learned, and how that competence can be objectively assessed.
That is what a modern, transformative legal profession should look like.
10. The argument for reform
The Legal Practice Act was meant to transform the profession, broaden opportunity and create a unified framework. Transformation should not create a new class of legally stranded professionals.
South Africa needs experienced prosecutors. It needs competent legal practitioners. It needs ethical standards. And it needs a regulatory system that can distinguish between genuine gaps in training and bureaucratic repetition.
The challenge is therefore not to choose between standards and fairness. We can and should have both.
The NPA should be given a meaningful pathway to participate in practical vocational training. Prosecutorial experience should be properly evaluated and recognised where it meets the required competencies. The LPC should apply its regulatory mandate consistently and transparently. The Minister should consider whether the existing regulatory framework can be strengthened to deal expressly with experienced state prosecutors. And where necessary, the courts should be asked to clarify the legal position.
For me, this is not simply an academic debate. It is about professional recognition, fairness and the value of public service. I believe that a prosecutor who has spent years standing in court, making difficult legal decisions, conducting trials, guiding investigations and serving the public should not have to prove that those years mattered by walking away from the institution in which they were earned.
We should not lower the bar. We should make sure the bar measures competence not merely chronology.
Justice • Integrity • Accountability • Inclusion • Equal Opportunity
Selected legal sources and authorities
Legal Practice Act 28 of 2014: sections 3, 24, 25, 26 and 94.
Legal Practice Act Regulations, 2018: regulations governing practical vocational training, including institutional training arrangements and structured coursework.
Ex Parte Goosen and Others 2020 (1) SA 569 (GJ), particularly the discussion of the post-1 November 2018 admission regime and the respective roles of the High Court and LPC.
Ex Parte Mokoena (26189/2019) [2019] ZAGPPHC 256.
National Prosecuting Authority Act 32 of 1998, including the statutory framework governing prosecutors’ rights of appearance.
Constitution of the Republic of South Africa, 1996: sections 9 and 22.
The analysis and conclusions presented in this blog belong solely to the author.
Originally published on LinkedIn on 27 August 2027.