This blog is co-authored by Sayshan Moodley, a candidate attorney.
A director, shareholder or member may not legally represent a juristic person in court unless they are an admitted and enrolled attorney or advocate. This rule may only be relaxed where the court grants leave in exceptional circumstances.
In a recent High Court matter, the day after the company’s attorneys withdrew, the ADS delivered an application for leave to appeal signed by its sole director. The respondent bank objected on the basis that the director was not an admitted and enrolled legal practitioner and had not obtained the court’s leave to file the notice, rendering it defective.
Under the common law, a director or shareholder who is not an admitted and enrolled attorney or advocate may not represent a juristic person in legal proceedings, whether by signing and filing pleadings or appearing in court on its behalf. Any pleadings filed on behalf of a juristic person must be signed by an admitted and enrolled attorney and advocate. An advocate or attorney with right of appearance in the High Court in terms of s4 of the Right of Appearance in Courts Act, 1995 can appear in court. In exceptional cases, the court may grant leave to depart from the requirements through an appropriately motivated and timeous application, demonstrating good cause.
Circumstances that may qualify as exceptional include instances where denying representation would result in procedural unfairness or prejudice. In contrast, financial inability to appoint legal counsel or a board resolution authorising the director to act do not constitute exceptional circumstances.
This rule serves to uphold the integrity of the legal system and prevent abuse of the judicial process.
Given that the director was aware of the need to appoint admitted and enrolled lawyers or to obtain leave from the court, and yet persisted with the leave application, the court found that the claimant’s application for leave to appeal was an irregular step and set it aside, with costs.