RIGHT OF APPEARANCE: ATTORNEYS & PLEADINGS

There has recently been a number of matters grappling with the question “When may an attorney with right of appearance sign High Court pleadings and countersign them as an attorney as well?”

I turned to the High Court Rules and the Right of Appearance Act to further understand the provisions contained in these pieces of legislation.

 

High Court Rules:

The definition of ‘attorney’ means an attorney admitted, enrolled and entitled to practice as such in the division concerned.

Rule 18: A combined summons, and every other pleading except a summons, shall be signed by both an advocate and an attorney or, in the case of an attorney who, under section 4 (2) of the Right of Appearance in Courts Act, 1995 (Act 62 of 1995), has the right of appearance in the Supreme Court, only by such attorney or, if a party sues or defends personally, by that party.

 

Right of Appearance Act:

The definitions of “attorney” means any person duly admitted and enrolled as an attorney in terms of the Attorneys Act, 1979 (Act No. 53 of 1979);

Section 3(4) of the Act: An attorney who has been granted the right of appearance in the Supreme Court shall also be entitled to discharge the other functions of an advocate in any proceedings in the Supreme Court.

Section 4 (2) of the Act: If the registrar is satisfied that an application referred to in subsection (1) complies with the provisions of this Act, he or she shall issue a certificate to the effect that the applicant has the right of appearance in the Supreme Court.

Section 4(4) of the Act: An attorney who has been granted the right of appearance in terms of this section shall be entitled to appear in any court throughout the republic.

 

Understanding:

  1. In the scenario where a pleading is to be signed by an advocate and countersigned by an attorney = The attorney countersigning the pleading must be admitted, enrolled and entitled to practice as such in the division concerned.
  2. In the scenario where a pleading is to be signed by an attorney with right of appearance = The attorney who has right of appearance shall be entitled to sign the pleading and he/she may countersign as an attorney as well, provided that such attorney is admitted, enrolled and entitled to practice as an attorney in the division concerned.
  3. An attorney with right of appearance may sign pleadings in any Supreme Court throughout the republic.
  4. An attorney may only sign pleadings relevant to actions in their specific division only.

 

Practical Application:

Failure to sign a pleading or incorrectly signing a pleading constitutes an irregular step in terms of High Court Rule 30. An application may therefore be brought to have the irregular step set aside, provided the offender has been given the opportunity to rectify the irregularity and has refused to correct the pleading.

The Applicant would have to show the Court prejudice suffered as a result of the irregular step before the Court would entertain such an application.

Considering costs and time, this procedural technicality should only be raised if and when your Client suffers sever prejudice.

 

The current feeling from the Courts:

ABSA Bank Ltd v Barinor New Business Venture (Pty) Ltd 2011 (6) SA 225 (WCC)

“The court stated that restricting the right of appearance to one division would lead to the ‘absurdity’ that an attorney could appear in the Supreme Court of Appeal and in the Constitutional Court, but not in other High Courts”

 

Liberty Group Ltd v Singh and Another (KZD) (unreported case no 9105/11, 7-6-2012)

“an attorney cannot sign a combined summons in his capacity as attorney in a division in which he has not been enrolled, but may sign it as an advocate if he holds a certificate of right of appearance”

 

Ex Parte Mason 1981 (4) SA 648 D at 651 E-F

Locus Clasicus in respect of procedural technicalities:

“Insofar as procedural matters are concerned, our law today inclines towards flexibility rather than rigidity as substance, rather than form, is of primary importance.”