For decades, an advocate could walk into the High Court of South Africa the day after admission and address a judge. A newly admitted attorney could not. The Legal Practice Act 28 of 2014 (LPA) preserved that divide by requiring attorneys to wait three years before applying for a Right of Appearance certificate in the Superior Courts or to complete an Advanced trial advocacy course at an LPC-accredited institution.
On 14 May 2026, the Gauteng High Court declared section 25(3)(a)(i) of the LPA unconstitutional. In Ramalepe and Marweshe Attorneys v Minister of Justice and Others, Davis, J. found that the three-year waiting period could not survive constitutional scrutiny. The order has since been referred to the Constitutional Court for confirmation.
This blog will discuss the provision being challenged, the Court’s reasoning, and what happens in the interim.
The provision under challenge
Section 25(3)(a)(i) of the LPA requires an attorney seeking a certificate of Right of Appearance in the High Court, the Supreme Court of Appeal, or the Constitutional Court to have been "practising as an attorney for a continuous period of no less than three years". The provision was carried over from the pre-LPA framework as a transitional measure but has remained a requirement ever since.
The challenge
The applicants attacked the provision on three main grounds: that it violates section 9 (equality), section 22 (freedom of profession), and that it is “irrational”. The Minister argued, in the main, that the matter was moot because Parliament was already considering amendments to the LPA, and requested that any declaration of invalidity be suspended for two years.
The Court's reasoning
On equality, the Court was direct and blunt in its reasoning. Advocates admitted on the same day immediately enjoy the Right of Appearance in the Superior Courts, but attorneys do not. Both branches of the profession are subject to a single regulator and a single statutory framework. The Court observed that attorneys are required to wait three years "before they are proverbially allowed to talk where the adults talk". Differential treatment of that kind, unsupported by any rational connection, is in direct contravention of the equality requirements of section 9 of the Constitution.
On the mootness argument by the Minister of Justice, the Court was unpersuaded. Pending legislative reform cannot be used as a defense for an ongoing constitutional violation. Parliament's intention to act, at some indefinite future point in time, is not a defense.
Accordingly, section 25(3)(a)(i) was declared unconstitutional and referred to the Constitutional Court for confirmation in terms of section 172(2)(a) of the Constitution.
The interim position: what now?
This is where legal practitioners should pause. A High Court declaration of statutory invalidity has no final legal effect until confirmed by the Constitutional Court. The referral process commonly takes several months.
In plain terms, the three-year rule still applies. The requirements for an attorney to appear in a Superior Court, until confirmation of the declaration of invalidity is granted by the Constitutional Court, are as follows:
- An admitted attorney with three years of practice experience; or
- Completion of an Advanced trial advocacy course that is LPC-accredited, such as that of the Gawie le Roux Institute of Law.
The position will only change once the Constitutional Court hands down its confirmation order
Attorneys, candidate attorneys, and law firms should therefore treat the judgment as a strong indicator of where the law is heading, but cannot yet rely on the judgment to argue for appearance, where the requirements of section 25 of the LPA have not been complied with.
Pleadings in the Superior Courts should still be signed by an attorney holding the existing certificate or an advocate. Premature reliance on the declaration carries a risk of irregular proceedings.
Conclusion
While many attorneys describe this judgment as a victory, this expectation must be tempered with the realisation that, until the Constitutional Court confirms the judgment, it is business as usual.
About the author
Hein Steenberg completed his BCom Law degree, followed by an LLB and LLM in mercantile law, with a specific focus on space law at the North-West University. Hein is currently pursuing his LLD in space law.
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Last updated on 25 May 2026.