Every person who has the necessary qualifications and integrity should be allowed to practice as a lawyer. No discrimination is permitted on grounds of race, colour, sex, ethnic origin, religion, political or other opinion, national or social origin, property, birth, economic or other status with regard to entry into the profession or continued practice. The prohibition of discrimination does not however necessarily preclude a requirement that a candidate for judicial office must be a national of the country concerned.{{1}} States should take special measures to provide opportunities and ensure needs-appropriate training for candidates from groups whose needs for legal services are generally not met, particularly when those groups have distinct cultures, traditions or languages or have been the victims of discrimination.{{2}} The Special Rapporteur on the independence of judges and lawyers has recommended that “all aspects of the lawyers’ career be regulated by the bar association”,{{3}} which in turn must be independent (see below). Independence of the legal profession both implies and includes security for lawyers, their clients and justice. For lawyers, this regularly means being granted a license that establishes their credentials and gives them the privilege to practice law. Licensure is a means of ensuring the quality and integrity of lawyers. At the same time, being part of a licensed profession provides lawyers with special protection, applying particular safeguards to the exercise of their professional activities, thus contributing to their independent functioning. It thus also serves to protect and assure those who call upon lawyers for legal services and enhances the quality of the administration of justice.
There are two categories of lawyers in Swaziland: advocates and attorneys. Becoming an advocate requires citizenship of or ordinary residence in Swaziland, and being a “fit and proper person” of at least 21 years of age. Additional requirements are:
- a bachelor of laws degree from the former University of Botswana, Lesotho and Swaziland; the former University of Botswana and Swaziland; the University of Swaziland; or any university in Botswana, Lesotho, Zimbabwe, South Africa, Namibia, England, Ireland or Scotland; or,
- holding a bachelor of laws degree and having practiced as an advocate in South Africa, Namibia, Botswana or Lesotho, or as a legal practitioner in Zimbabwe, for at least two years; in this case, if the individual previously practised as an attorney, he or she may not have done so for a period of three months immediately prior to the application in Swaziland; or
- having been admitted as a barrister or solicitor in England, Scotland or Ireland and remaining so enrolled.{{4}}
In order to be licensed to practice law as an attorney, the applicant must provide proof of the same citizenship and educational requirements as those applicable to advocates. In addition he or she must:
- provide proof of holding a bachelor’s degree in law from a university in one of the countries referred to above and provide proof of having served a period of articles and having passed the examinations, which may be written after having completed at least half of service of articles. The Chief Justice makes the regulations pertaining to the service under, and the examination for articling attorneys, after consultation with a committee consisting of a law officer, the Registrar of the High Court and two legal practitioners appointed by the Council of the Law Society;{{5}} or,
- provide proof of holding a bachelor’s degree in law from a university in one of the countries referred to above, and being enrolled as an attorney in South Africa, Namibia, Botswana or Lesotho or as a legal practitioner in Zimbabwe, and having practised so for at least two years; or,
- provide proof of having been admitted as a barrister or solicitor in England, Scotland or Ireland; or,
- provide proof of having practiced as an advocate in Swaziland, but not in the three months prior to the application for enrolment as an attorney, and of having successfully served articles of clerkship and passed any examinations prescribed.{{6}}
The High Court is the body that admits advocates and attorneys to practice.{{7}} Applicants must first serve a copy of his or her petition to practice on the Attorney-General and the Secretary of the Law Society.{{8}} The latter two provide certificates to this effect, which are essential for the application to the High Court.{{9}} The certificates usually record non-objection to the petition; if there are grounds for opposition, they are filed with the Court for argument. A person who is neither a citizen nor a resident of Swaziland may seek permission to appear as counsel or attorney. To do so, they must apply to the Attorney General and the Secretary of the Law Society. The Chief Justice takes the decision on the right of audience, for each case.{{10}} [[1]]1. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 10;”] Governments, professional associations of lawyers and educational institutions shall ensure that there is no discrimination against a person with respect to entry into or continued practice within the legal profession on the grounds of race, colour, sex, ethnic origin, religion, political or other opinion, national or social origin, property, birth, economic or other status, except that a requirement, that a lawyer must be a national of the country concerned, shall not be considered discriminatory. [/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Article 77″] Legal education and entry into the legal profession shall be open to all persons with requisite qualifications and no one shall be denied such opportunity by reason of race, colour, sex, religion, political or other opinion, national, linguistic or social origin, property, income, birth or status. [/expand] and [expand title=”80;”] Every person having the necessary qualifications, integrity and good character shall be entitled to become a lawyer and to continue to practise as a lawyer without discrimination on the ground of race, colour, sex, religion or political or other opinion, national, linguistic, or social origin, property, income, birth or status or for having been convicted of an offence for exercising his internationally recognized civil or political rights. The conditions for the disbarment, disqualification or suspension of a lawyer shall, as far as practicably, be specified in the statutes, rules or precedents applicable to lawyers and others performing the functions of lawyers. [/expand] International Bar Association (IBA) Standards for the Independence of the Legal Profession, [expand title=”Standard 1.”] Every person having the necessary qualifications in law shall be entitled to become a lawyer and to continue in practice without discrimination. [/expand][[1]] [[2]]2. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 11.”] In countries where there exist groups, communities or regions whose needs for legal services are not met, particularly where such groups have distinct cultures, traditions or languages or have been the victims of past discrimination, Governments, professional associations of lawyers and educational institutions should take special measures to provide opportunities for candidates from these groups to enter the legal profession and should ensure that they receive training appropriate to the needs of their groups. [/expand][[2]] [[3]]3. Gabriela Knaul, Special Rapporteur on the independence of judges and lawyers, Report on mission to Turkey, UN Doc. A/HRC/20/19/Add.3 (2012), [expand title=”para. 66.”] The Special Rapporteur further notes with concern that the activities of lawyers are controlled by the Ministry of Justice, which deals with lawyers’ registration and disciplinary actions. It is recommendable that all aspects of the lawyers’ career be regulated by the bar association. [/expand] See also Human Rights Committee, Concluding Observations on Belarus, UN Doc. CCPR/C/79/Add.86 (1997), [expand title=”para. 14.”] The Committee also notes with concern the adoption of the Presidential Decree on the Activities of Lawyers and Notaries of 3 May 1997, which gives competence to the Ministry of Justice for licensing lawyers and obliges them, in order to be able to practise, to be members of a centralized Collegium controlled by the Ministry, thus undermining the independence of lawyers. In this regard: The Committee stresses that the independence of the judiciary and the legal profession is essential for a sound administration of justice and for the maintenance of democracy and the rule of law. The Committee urges the State party to take all appropriate measures, including review of the Constitution and the laws, in order to ensure that judges and lawyers are independent of any political or other external pressure. The attention of the State party is drawn in this connection to the 1985 Basic Principles on the Independence of the Judiciary and the 1990 Basic Principles on the Role of Lawyers, adopted by the United Nations General Assembly. [/expand][[3]] [[4]]4. Legal Practitioners Act, [expand title=”S. 5(1).”] Every person who applies to be admitted and enrolled as an advocate shall produce proof to the satisfaction of the High Court that —
(a) he is a citizen of Swaziland or is ordinarily resident in Swaziland, and is a fit and proper person to be admitted as an advocate; and
(b) he is of or above the age of twenty-one years; and
(c) he holds the degree of—
(i) Bachelor of Laws of the former University of Botswana, Lesotho and Swaziland; or the former university of Botswana and Swaziland;or the University of Swaziland; or
(ii) Bachelor of Laws of any University in Botswana, Lesotho, Zimbabwe, South Africa or Namibia; or
(iii) Bachelor_s degree in Law, not being a honorary degree, from any University in England, Ireland or Scotland; or
(d) he holds a Bachelor of Laws degree of a University in a country referred to in this paragraph and has been admitted and enrolled to practise as an advocate in South Africa, Namibia, Botswana or Lesotho or as a legal practitioner in Zimbabwe and has so practised for at least two years and at the date of such application remains so enrolled and no proceedings to remove or suspend him from practice are pending or contemplated; and
(e) in the case of a person to whom paragraph (d) applies, having at any time prior to his application for admission as an advocate practised as an attorney he has not practised as such attorney in South Africa, Namibia, Botswana, Lesotho or Swaziland for a period of three months immediately preceding such application or while admitted and enrolled as an advocate in any of those countries; or
(f) has been admitted as a barrister or solicitor in England, Scotland or Ireland and remains so enrolled and no proceedings to remove or suspend him from the roll are pending or contemplated.
and thereupon the High Court shall, unless cause to the contrary is shown to its satisfaction, admit and enrol that person as an advocate. [/expand][[4]] [[5]]5. Legal Practitioners Act, [expand title=”S. 33(2).”] The Chief Justice, after consultation with a committee consisting of a law officer, the Registrar and two legal practitioners appointed by the Council, may, by notice in the Gazette, make Regulations for the purpose of determining and prescribing –
(a) the examination any person is required to pass before being admitted and enrolled as a legal practitioner or any exemptions he may be granted from such examinations;
(b) the rights, duties and powers of a curator bonis appointed under section 24;
(c) except as otherwise provided in this Act, such other matters relating to service under articles (and for this purpose he may amend the Schedule hereto) and the admission of legal practitioners.
[/expand][[5]] [[6]]6. Legal Practitioners Act, [expand title=”S. 6(1).”] Every person who applies to be admitted and enrolled as an attorney shall produce to the satisfaction of the High Court proof that —
(a) he is a citizen of Swaziland or is ordinarily resident in Swaziland and is a fit and proper person to be admitted and enrolled as an attorney; and
(b) he is of or above the age of twenty-one years; and
(c) he holds —
(i) a Bachelor of Laws degree of the former University of Botswana, Lesotho and Swaziland; or the former University of Botswana and Swaziland; or any university in Botswana, Lesotho, Swaziland, Zimbabwe, South Africa or Namibia; or
(ii) a Bachelor’s degree in law from a University in a country referred to in sub-paragraph (i); or
(iii) a Bachelor’s degree in Law, not being a honorary degree, from any University in England, Ireland or Scotland; and has served a period of articles and passed examinations prescribed under this Act which may be written after having completed not less than one half (½) of service of such articles; or
(d) he holds a Bachelor’s degree in law from a university in a country referred to in this paragraph and is admitted and enrolled as an attorney in South Africa, Namibia, Botswana or Lesotho or a legal practitioner in Zimbabwe and has practised as such for at least two years and at the date of such application he remains so enrolled and no proceedings to remove or suspend him from practice are pending or contemplated; or
(e) has been admitted as a barrister or solicitor in England, Scotland or Ireland and no proceedings to remove or suspend him from the roll are pending or contemplated; or
(f) having at any time prior to his application for admission as an attorney practised as an advocate in Swaziland he has not practised as such advocate for a period of three months immediately preceding such application and that he has not at any time been struck off the roll or suspended from practice and has successfully served articles of clerkship and passed any examinations prescribed under this Act;
and thereupon the High Court shall, unless cause to the contrary is shown to its satisfaction, admit and enrol such person as an attorney. [/expand][[6]] [[7]]7. Legal Practitioners Act, [expand title=”S. 5(1)”] Every person who applies to be admitted and enrolled as an advocate shall produce proof to the satisfaction of the High Court that —
(a) he is a citizen of Swaziland or is ordinarily resident in Swaziland, and is a fit and proper person to be admitted as an advocate; and
(b) he is of or above the age of twenty-one years; and
(c) he holds the degree of—
(i) Bachelor of Laws of the former University of Botswana, Lesotho and Swaziland; or the former university of Botswana and Swaziland;or the University of Swaziland; or
(ii) Bachelor of Laws of any University in Botswana, Lesotho, Zimbabwe, South Africa or Namibia; or
(iii) Bachelor_s degree in Law, not being a honorary degree, from any University in England, Ireland or Scotland; or
(d) he holds a Bachelor of Laws degree of a University in a country referred to in this paragraph and has been admitted and enrolled to practise as an advocate in South Africa, Namibia, Botswana or Lesotho or as a legal practitioner in Zimbabwe and has so practised for at least two years and at the date of such application remains so enrolled and no proceedings to remove or suspend him from practice are pending or contemplated; and
(e) in the case of a person to whom paragraph (d) applies, having at any time prior to his application for admission as an advocate practised as an attorney he has not practised as such attorney in South Africa, Namibia, Botswana, Lesotho or Swaziland for a period of three months immediately preceding such application or while admitted and enrolled as an advocate in any of those countries; or
(f) has been admitted as a barrister or solicitor in England, Scotland or Ireland and remains so enrolled and no proceedings to remove or suspend him from the roll are pending or contemplated.
and thereupon the High Court shall, unless cause to the contrary is shown to its satisfaction, admit and enrol that person as an advocate. [/expand] in fine and [expand title=”S. 6(1)”] Every person who applies to be admitted and enrolled as an attorney shall produce to the satisfaction of the High Court proof that —
(a) he is a citizen of Swaziland or is ordinarily resident in Swaziland and is a fit and proper person to be admitted and enrolled as an attorney; and
(b) he is of or above the age of twenty-one years; and
(c) he holds —
(i) a Bachelor of Laws degree of the former University of Botswana, Lesotho and Swaziland; or the former University of Botswana and Swaziland; or any university in Botswana, Lesotho, Swaziland, Zimbabwe, South Africa or Namibia; or
(ii) a Bachelor’s degree in law from a University in a country referred to in sub-paragraph (i); or
(iii) a Bachelor’s degree in Law, not being a honorary degree, from any University in England, Ireland or Scotland; and has served a period of articles and passed examinations prescribed under this Act which may be written after having completed not less than one half (½) of service of such articles; or
(d) he holds a Bachelor’s degree in law from a university in a country referred to in this paragraph and is admitted and enrolled as an attorney in South Africa, Namibia, Botswana or Lesotho or a legal practitioner in Zimbabwe and has practised as such for at least two years and at the date of such application he remains so enrolled and no proceedings to remove or suspend him from practice are pending or contemplated; or
(e) has been admitted as a barrister or solicitor in England, Scotland or Ireland and no proceedings to remove or suspend him from the roll are pending or contemplated; or
(f) having at any time prior to his application for admission as an attorney practised as an advocate in Swaziland he has not practised as such advocate for a period of three months immediately preceding such application and that he has not at any time been struck off the roll or suspended from practice and has successfully served articles of clerkship and passed any examinations prescribed under this Act;
and thereupon the High Court shall, unless cause to the contrary is shown to its satisfaction, admit and enrol such person as an attorney. [/expand] in fine.[[7]] [[8]]8. Legal Practitioners Act, [expand title=”S. 28.”] Any person who wishes to be admitted and enrolled as a legal practitioner or who wishes to be granted a right of audience in any particular case or matter shall, by written petition, apply to the High Court after serving a copy of such petition upon the Attorney-General and the Secretary of the Law Society as provided by section 30. [/expand][[8]] [[9]]9. Legal Practitioners Act, [expand title=”S. 30.”] (1) Any person who applies to be admitted or re-admitted as a legal practitioner or for a right of audience shall, at least twenty one days before the date of his application, deliver to the Attorney-General and the Secretary of the Law Society together with his notice of application, a copy of his petition for admission or re-admission or right of audience and a copy of all affidavits, certificates and other documents or papers which are referred to or connected with the application. (2) Upon production to the Attorney-General and the Secretary of the Law Society as provided in subsection (1), of the notice of application and a copy of the petition, affidavits, certificates, other documents or papers and upon payment of such fees as may be prescribed in terms of section 33(1), the Attorney-General and the Secretary of the Law Society shall if satisfied that the applicant has complied with the provisions of subsection (1), certify on such application that the provisions of this section have been complied with. (3) Unless certificates have been obtained from the Attorney-General and the Secretary of the Law Society as required by subsection (2), the applicant shall not be entitled to proceed with his application to court. (4) In the case of an application for the grant of a right of audience, if the High Court is satisfied that such application is of sufficient urgency and that it is appropriate, having regard to all the circumstances, to reduce the period of notice specified in subsection (1) it may reduce such period to not less than two days but only after the applicant has given notice to the Attorney-General and the Secretary of the Law Society of his intention to present his application in terms of this subsection. (5) The Attorney-General and the Law Society shall be entitled to be represented at the hearing of an application for admission, re-admission or right of audience. [/expand][[9]] [[10]]10. Legal Practitioners Act, [expand title=”S. 5(2)”] Notwithstanding subsection (1), the Chief Justice may for the purpose of any particular case or matter grant a right of audience in the Courts of Swaziland or before any quasi-judicial tribunal in Swaziland to any person who, being otherwise eligible for admission, is not a citizen of Swaziland or ordinarily resident or practising as an advocate therein, in order to enable such person to appear as Counsel in any such case or matter. [/expand] and [expand title=”S. 6(2).”] Notwithstanding subsection (1), the Chief Justice may for the purpose of any particular case or matter grant a right of audience in the Courts of Swaziland or before any quasijudicial tribunal in Swaziland to any person who, being otherwise eligible for admission, is not a citizen of Swaziland or ordinarily resident or practising as an attorney therein, in order to enable such person to appear as attorney in any such case or matter. [/expand][[10]]
