The distinction between attorneys and advocates has been retained in the Legal Practice Act, 2014 (LPA) and, unlike an attorney, an advocate is required to practice their profession independently and for their own account. Under the LPA, an advocate may elect whether to practice either
- as a referral advocate and obtain their briefs through an attorney, or
- as a trust account advocate and solicit briefs without the use of an attorney and directly from clients.
The successful practice of advocacy requires a mastery of law and fact, strategic judgement and the ability to present a case articulately, persuasively and coherently. Advocates also practice in other fora, including tribunals and arbitrations, provide legal opinions and assist with the drafting of legal documents that are required in every walk of life, be they commercial, industrial or domestic.
What does an advocate do?
Advocates have specialised expertise in various areas of the law, and are required to master the art of presenting and arguing cases in court.
They are briefed by attorneys when a specialist skill is needed in a litigious matter or in order to obtain a legal opinion. In general, attorneys are legal practitioners that clients first approach with their problem, and who provide general advice on the law. Should it become necessary, the attorney will then engage an advocate on the client’s behalf.
An advocate prepares cases by:
- Use of verbal and writing skills to understand, explain and persuade.
- Reads many documents and digests a lot of factual information.
- Researches the law.
- Uses listening skills to digest the stories told by clients in a consultation and the evidence given by witnesses in court.
- Diagnoses from the facts and the law what the question to be decided is.
- Drafts “pleadings” which state in very careful terms what the issues are that the court or the arbitrator must decide.
- Provides advice on legal problems and explains difficult choices to attorneys and to clients in “opinions”.
- Negotiates with colleagues over the settlement or the conduct of cases.
- Guides witnesses to give their evidence by asking questions and tests the truth and value of the evidence given by witnesses by cross-questioning them.
- Drafts “arguments” setting out the facts and law relevant to the decisions to be decided.
- Argues a case for a client to persuade a Judge or Magistrate or Arbitrator.
- Above all, an Advocate is an officer of the Court and as such must always act in a manner which reflects the highest ethical and professional standards. Members of PABASA are required to comply with its Ethics Policy and Code of Conduct in this regard.
Where does an Advocate get work from?
Save for certain exceptions, advocates do not receive briefs directly from clients and all their work is referred to them by attorneys. An advocate may receive his/her brief from a variety of different sources:
- Private sector law firms of attorneys
- the State Attorney, who represents Government Entities and Departments
- the Legal Aid Board, which provides legal assistance at State expense to indigent people who would not otherwise be able to afford an attorney or an advocate, sometimes with the collaboration with private sector attorneys, the Legal Aid Board instructs advocates to do work.
- directly from the public if you practice as a trust-account advocate.
Further career prospects?
Advocates can also act as arbitrators, mediators, in-house legal counsel and, with more experience in the profession, may be granted silk status as a Senior Counsel, or appointed as a Judge.
How do you become an advocate?
The road to becoming an advocate is a long but rewarding one.
The requirements are set out in the LPA.
- A National Senior Certificate that meets the requirements for an LLB degree (or an international equivalent) is a prerequisite. You will need either a four-year LLB degree or a three-year undergraduate degree (BA, BSC, etc) plus a two-year post-graduate LLB degree from any South African university.
- Having achieved this, the next step is to complete the 12-month period of apprenticeship, known as pupilage. During pupillage, a pupil advocate will be paired with an experienced advocate to observe and learn how the practice of advocacy is carried out in chambers and in the courts. Information regarding pupillage and of the pupillage syllabus can be obtained here
- Thereafter, you will need to apply to the High Court for admission to the profession of advocates. To do this, an applicant must satisfy the court that he/she is:
- a fit a proper person,
- passed the pupilage exams, and
- completed the period of pupilage, including community service.
- Following your admission as an advocate, an application for the enrolment of your name onto the Legal Practice Council roll of advocates and payment of the prescribed annual fee will enable you to practice as an advocate in South Africa.
Once admitted, it is customary to join one of the national and provincial Bar Associations of advocates established in the country, of which PABASA is one. This is the representative body of the advocates’ profession with the main purpose to maintain professional and ethical standards amongst its members and to liaise on behalf of its members with the statutory regulatory body for legal practitioners, the Legal Practice Council.
Where can I get more information?
Should you think that a career at the Bar is for you and you would like to apply for pupilage at PABASA, the School of Advocacy pupilage application form is available on this website.
