For a few dollars more: Overcharging and misconduct in the legal profession of the Zuid-Afrikaansche Republiek*

Liezl Wildenboer
BLC LLB
Senior Lecturer, Department of Jurisprudence, University of South Africa

OPSOMMING
Vir n paar doller meer: Oorvordering en wangedrag in die regsberoep van die Zuid-Afrikaansche Republiek
Die regslui van die Zuid-Afrikaansche Republiek (ZAR is al beskuldig daarvan dat hulle gewetenloos en ondergekwalifiseerd was en ook buitensporige fooie gevra het van hul kliente. Hierdie artikel ondersoek sekere van hierdie aantygings. Eerstens word daar gekyk na die regulasie van die kwalifikasie-en toelatingsvereistes van lede van die regsprofessie, asook na verwante aangeleenthede soos die "dual practice" tradisie en die impak van die eksamenraad. Tweedens word die regulasie van regskostes bekyk. Derdens word enkele gevalle van wangedrag in die regsprofessie van die ZAR kortliks bespreek. Ten slotte maak die outeur sekere gevolgtrekkings en lewer kommentaar oor sekere aspekte.
The more I think about it, Old Billy was right Let's kill all the lawyers, kill 'em tonight.
-The Eagles Get over it

l lntroduction
The lawyers practising in the old Zuid-Afrikaansche Republiek (ZAR have been accused on more than one occasion of being unscrupulous and self-serving. In his autobiography, Sir H Rider Haggard remembered them as follows: To put it mildly, the lawyers who frequented the Transvaal courts were not the most eminent of their tribe. Indeed some of them had come thither because of difficulties that had attended their careers in other lands.
In addition, the perception exists that this group of lawyers was not only under qualified, but also that they were infamous for overcharging.
However, Kotze CJ sketched a contrary picture and remembered them quite differently:
I still have pleasant recollections of my early experience on the bench during the period of annexation, and of the good service and loyalty of these old practitioners.
The purpose of this article is to investigate these opposing views on the reputation of the legal profession in the ZARuntil 1900. This will be done by firstly setting out the matter of the qualifications of lawyers during this period and secondly, by examining possible evidence regarding the claims of overcharging and misconduct against this group.

2 Qualifications
2 1   Required Qualifications
The first statute dealing with the administration of justice in the ZARwas De Drie en Dertig Artikelen promulgated on 9 April 1844 which was confirmed by a resolution of the Volksraad on 23 May 1849. This statute contained general provisions on "law sessions" (teregt-zittengen) but did not mention legal representatives other than stating that a person could either plead his own case before the Regtbank or instruct another person to do so on his or her behalf.

The stipulations regarding the administration of justice as contained inthe Constitution of 1858 were more extensive and sophisticated. It made provision for the establishment of a hof van den landdrost in each district, with appeals to a higher hof van den landdrostwith six or at least four heemraden. The highest court was the hoog-geregtshof which sat at least twice a year. To each court was assigned a clerk and a messenger. Although the Constitution even established weesheeren and a weeskamer, it made no mention of legal representatives or their required qualifications. However, in Bijlage No 3 to the 1858 Constitution, it was stipulated that a person could only use the title of procureur after acquiring an acte van toelating from the Uitvoerende Raad (Executive Council). A person had to apply for admission in writing to the Executive Council providing proof of membership of the Nederduitsche Gereformeerde Gemeente as well as proof of ability,without defining what "ability" referred to. An application was then granted by the Executive Council after consultation with the State Attorney. In 1876 this rule was extended to prohibit the use of the titles of advocaat (advocate), notaris (notary) and agent by persons not in possession of an acte van toelating, obtained from the Executive Council. The requirement regarding membership of the Nederduitsche Gereformeerde Gemeentewas also amended to include membership of any Protestantschechurch.

Law 1 of 1874 was drafted by the State Attorney of that time, James Buchanan, and provided for the regulation of civil and criminal procedures in cases before the geregthoven van landdrosten and thegeregthoven van landdrosten en heemraden. In addition to the already existing offices of clerks and messengers of the court, the Law further made provision for the judicial office of griffier. However, with regard to legal representatives, the Law merely stated that no person, other than an attorney (procureur) properly admitted before the hoogere geregtshovencould act as such. The Law unfortunately did not define what these requirements for proper admission entailed. Agents could also appear as legal representatives in the lower courts (geregthoven van landdrosten and geregthoven van landdrosten en heemraden) by acquiring a licence from a landdrost. The only requirements for such a licence entailed the passing of an examination before the Commissie van Examinatoren in de Reghtsgeleerdheidd and being of a good character.

On 18 May 1877, after the annexation of the ZAR by Britain, a proclamation was promulgated by the new administrator of the colony, Sir Theophilus Shepstone. This proclamation met with the approval of the press and dealt with aspects of the administration of justice with particular regard to matters involving the high court. In addition to, among others, the establishment of the said court, provision for the appointment of one judge, one meester en griffier and one baljuw, as well as the seat and jurisdiction of the court, the proclamation specifically dealt with the admission of lawyers. All advokaten (advocates), procureurs (attorneys), notarissen publiek (notaries) and ontwerpers van acten (conveyancers) were from that time approved, registered and admitted by the high court. Persons who had been practising as advocates and attorneys before the promulgation of this proclamation could be admitted as such by the high court. It was also possible for the following persons to be admitted to practice: persons who had been admitted as members of the bar in the United Kingdom, or in the colonies of de Kaap de Goede Hoop or Natal and who had not been refused admission or become incompetent could be admitted as advocates; persons who had practised as attorneys or solicitors at the Griffie Hovenat Westminster or Dublin, or in the ecclesiastical courts in
England or Ireland, or were members of The Society of Writers to Her Majesty's Signet in Scotland or attorneys of the high courts of the Cape or Natal and who had never been struck from the roll of any of these courts or suspended from practice could be admitted as attorneys; persons who were admitted to practise as notaries or conveyancers in the colonies of the Cape or Natal and who had not been suspended or become incompetent could be admitted as notaries or conveyancers respectively. The rules for admission were the same as those applicable at the Cape in 1876. These stipulations meant that thenceforth all persons wishing to be admitted as advocates or attorneys had to have been admitted as such elsewhere and therefore had to have obtained the relevant required legal training. Furthermore, members of the legal profession could then be suspended or have their privileges revoked by the high court if necessary.
Four years later, soon after the British annexation came to an end, the new government issued a proclamation confirming that all members of the legal profession who had been practising as such at the time of the proclamation, could continue to practise provided that they take aprescribed oath. They were still subject to suspension or revocation of privileges by the high court should "een wettelijk oorzaak" exist. This applied to advocates, attorneys, notaries and conveyancers.
In accordance with Proclamation 14 of 1892, attorneys or solicitors of any of the courts of record in London or Dublin, Writers to Her Majesty's Signet or law agents admitted to practise in the Supreme Courts in Scotland, or attorneys admitted to practise in the Cape could be admitted to practise in the ZAR provided that no order of suspension applied to any of them.

For admission as an attorney, notary and conveyancer, the High Court Rules of 1887 required successful completion of the second-class examination in law and articles of three consecutive years. To be admitted as an advocate, a person had to pass the first-class examination in law. Persons who had been admitted to the Bar in the Cape, or who had qualified as an advocate at one of the hoogescholen(or universities) in the Netherlands could be granted admission to practise as an advocate in the ZAR. All other persons who had received their legal training abroad had to pass a supplementary examination. Furthermore, a qualified advocate could be permitted to practise as an attorney, although not in a dual capacity.

The High Court Rules of 1899 also contained requirements regarding admission. Advocates had to obtain a certificate of the first class in law from the board of examiners. Advocates who had been admitted in foreign jurisdictions, were no longer admitted at random, but had to pass an examination in subjects determined by the court. As before, attorneys (and notaries) had to obtain a relevant certificate from the board as well as complete articles for a period of three successive years. Although conveyancers, too, had to obtain a certificate from the board, they were not required to do articles. Persons who had been admitted in foreign jurisdictions as attorneys, notaries or conveyancers had to pass a supplementary examination and attorneys and notaries had to serve the required period of articles. Such persons could further only be admitted if the requirements for admission in the foreign jurisdiction were the same or "more favourable" than in the ZAR. All advocates, attorneys, notaries and conveyancers had to take a prescribed oath upon admission. Interestingly, although women could become advocates, they were barred from the professions of attorneys, notaries and conveyancers. Lastly, although the 1899 High Court Rules acknowledged law agents, it did not deal with their admission requirements since they did not have right of appearance in the high court.

2 2  Dual Practice
It should be borne in mind that until 1877, dual practice was permitted in the ZAR. This meant that attorneys could perform the duties of advocates and vice versa. As mentioned before, a third, lower branch of the profession consisted of law agents. Kotze CJ himself was very critical of the dual practice system, despite opposition from the legal profession and the press. Probably due to his insistence it wasdecreed in 1877 that the legal profession was to be divided and that admission to one branch would prevent admission to the other, although persons who had been permitted to practise in both branches before that date could still continue to do so. Even this concession was later retracted by the 1884 High Court Rules which prohibited a person from practising in the dual capacity of an advocate and an attorney. From that date the ZAR had a truly divided legal profession. Nevertheless, a qualified advocate could be admitted as an attorney on the condition that he had not practised as an advocate in the six months prior to his application.
Although there were very specific requirements for admission to the profession, it said little about the actual legal knowledge of practitioners. The next question therefore concerns the extent of the legal knowledge expected of them.

2 3  The Board of Examiners
A major change that affected the qualifications of legal professionals was implemented in 1878. Earlier, a board of examiners responsible for testing potential legal practitioners consisted of four members, namely three local attorneys and the chairman, Mr NJR Swart. Mr Swart had no qualifications and the other members of the board were locally qualified. Moreover, the fact that Dr EJP Jorissen, a theologian with no legal knowledge, was able to pass this examination after a mere three months of study, casts some doubt on the standard of the examination.

Justice Kotze found the lack of legal training intolerable as it ruined his ideal of a trained and knowledgeable legal profession. In response to his request, the members of the board would in future include the judge of the high court and the Attorney-General in their official capacities, as well as two advocates of the high court, to be nominated bygovernment. Also, three categories of certificates to be awarded to successful candidates were identified and the syllabus for each published. From that time onwards, advocates had to obtain a first-class certificate; attorneys, notaries and conveyancers a second-class certificate; and law agents a third-class certificate. Examinations could be taken twice annually and operated on a points system. For example, one Max Fleischack was found worthy of admission as a law agent during the examination held on 31 March 1885 as he was awarded 384 points out of a maximum of 600 for his knowledge of Van der Linden, and 359 points out of a maximum of 600 for his knowledge of the local
legislation. As a result, he received a third-class certificate.

In 1887 additional requirements were set. Candidates wishing to take one of the three examinations in law first had to obtain other basic certificates. Also, candidates that had received their training abroad could be required to sit for a supplementary examination. Examinations were taken orally and in writing. The fees payable for each examination were also stipulated.
Some eight years later it was determined that the requirements for examinations had to correspond to those of neighbouring states and colonies in South Africa to enable the mutual recognition of diplomas and degrees. Further, the syllabi for each certificate were once again published and a separate examination for conveyancers was introduced. Candidates who were caught making use of "unfair aids" during the examination could be prohibited from taking examinations for a period, or ever again.
It is apparent then that during the early years of the ZAR, qualifications and training were not considered a prerequisite for entrance into the legal profession. Instead, measures were put in place to exclude unwanted persons from the profession, namely an undefined "ability" as well as objective proof of White Afrikaner morality in the form ofmembership of the Dutch Reformed Church. Although this untenable position was addressed from 1877 onwards, persons who had been admitted under the old regime were unaffected and could continue to practice. As a result, the last two decades of the nineteenth century saw two groups emerge in the legal profession: the older practitioners with little or no formal training, and the new legally trained practitioners.

3 Overcharging
In response to a public request, the first official tariff of costs pertaining to legal practitioners was laid down by Law 2 of 1871. This Law regulated the fees that could be charged by attorneys in the high court, distinguishing between illiquide and liquide zaken. The Law also regulated costs of law agents, notaries and transactions passed by the registrateur van acten or landdrosts. In criminal matters, however, the fees could be determined by agreement between the attorney or law agent and his client and was therefore not regulated. Notaries were required to submit their accounts for taxation. In 1877 the Acting Attorney General requested the government that all fees payable in public offices be converted to stamp duty. Among the reasons for this request was that it would "be a safer way of collecting ... the payment of fees".
More than ten years later the Legislature deemed it necessary to promulgate more extensive provisions regarding tariffs of costs. Act 8 of
1883 contained detailed specifications regarding costs and from that time onwards fees were calculated per page. The 1883 Act provided that if an attorney's bill of costs was taxed down by more than a quarter of the total amount of the bill, that attorney had to pay all the costs relating to the taxation, including the drafting of the bill, the attendance at the taxation master as well as the relevant stamp duty due. Unlike the 1871 Law, the 1883 Act also specifically regulated the fees of advocates. This suggests that overcharging had occurred on a regular enough basis to warrant state regulation of fees.
The 1887 High Court Rules made the taxation of all bills of costs (between party and party, and between attorney and client) compulsory. Non-compliance could result in the relevant attorney being suspended or struck from the roll.
The regulation of bills of costs was further streamlined by Law 12 of 1899 which determined that all bills of costs in lawsuits in the high court and the lower courts had to be taxed. The taxing master could then demand proof that the services claimed for in the bill, had indeed been rendered. Furthermore, an advocate could no longer charge for more than five consultations per bill, and, in the case of postponements ofexceptions or appeals, could only charge for the term that an exception or appeal was on the roll for the first time.
The taxation of bills of costs in legal disputes was first suggested in 1877 by H Rider Haggard during his term as master and registrar of the high court. He deemed this necessary after it had become known that certain advocates and attorneys took to agreeing to each other's bills of costs which were then not sent for taxation. Not surprisingly, Haggard pointed out that such a practice was potentially very harmful to clients as this meant that the lawyers could charge what they wanted. He recalled that one of the first bills of costs brought to him for taxation, was for an amount of around ｣600. He taxed it down by half.
State intervention to curb overcharging by legal professionals came as a welcome relief to the public of that time, especially the Boers, who were considered "extraordinarily litigious".

4 Misconduct
Misconduct and unethical behaviour among members of the legal profession in the ZAR were not uncommon. Due to the constraints of this article, only a few interesting examples will be discussed.

William Emil Hollard practised as an attorney during the 1870s and 1880s. Stories and rumours about Hollard's life abound, although most of these have not been proven conclusively for lack of documentary evidence. Apparently Hollard came from Danzig, West Prussia, where he had been a painter and a soldier. Without any apparent legal training, hewas admitted as a law agent in 1870 and as an attorney in the following year. He practiced in dual capacity and is considered to have been one of the founding members of the Pretoria Bar. However, he was also a fugitive of the law on more than one occasion and was accused of crimes such as theft, prison-break, murder and fraud, although never convicted of any of them. For example, in 1876 he was struck from the roll of attorneys and prohibited from acting as sworn translator or as conveyancer. This was surely linked to the lastbrief tot apprenhentie for Hollard issued on the same date because of an alleged crime of falsiteit en bedrogallegedly committed on 20 March 1873. Haggard most probably referred to him in his autobiography as one of the lawyers of the ZAR who "was reported to have committed a murder and to have fled from the arm of justice". It is furthermore rumoured that Hollard once, during cross-examination, angered a witness in the famous divorce case of Weatherley v Weatherley so much so that he was challenged to a duel. Despite his lack of legal training and poor language skills, he had a successful practice as partner in Hollard & Keet and was able to afford one of the most expensive houses in Pretoria.

Not only the practitioners, but also government officials were guilty of behaviour unbecoming to their positions, one of which was AJ Munnich who was dismissed from his position as Attorney-General on 18 October 1866. Complaints of dereliction of duty prompted an investigation which revealed that this had occurred on at least two occasions. In addition, he had accepted a gift from an accused on trial in exchange for the withdrawal of charges. Notwithstanding, this did not mean the end of Munnich's legal career. In 1876 he was one of EJP Jorissen's examiners and in 1877 he was offered a position as puisne judge by President Burgers.
The bench itself doesn't have a spotless history. Justice Benedictus de Korte had to resign his office as criminal law judge in 1896 after allegations of partiality and professional misconduct. The first allegations were made by the press two years earlier and new information continued to be published regularly after that. It was alleged that because of personal debt, De Korte had inappropriately involved himself with the administration of justice on more than one occasion, had dishonoured a cheque, had mortgaged his immovable property to two different persons and had failed to settle an account for official travel expenses in spite of receiving a travel allowance to that effect. A special court, consisting of five members of the Volksraad and three members of the judiciary, found De Korte not guilty of official misconduct but held that he hadacted contrary to the dignity expected of a member of the bench. It was this finding that prompted De Korte's letter of resignation. He then practised in a private capacity.
The magistrate's clerk of Marthinuswesselstroom in the district Wakkerstroom, one J Vos, was dismissed from his position by the Volksraad after he was found to have acted improperly by illegally registering 120 farms. Vos responded that he was unfairly dismissed and demanded to be reinstated.
In 1892 a professional body, the Orde van Procureurs en Notarissen in die Zuid-Afrikaansche Republiek (hereafter referred to as the Orde), was established to regulate the attorneys' profession.

Membership was compulsory. However, it seems that not all the members of the profession were ecstatic about a regulatory body. This is evident from the case Ingelyfde Orde van Procureurs en Notarissen in De Zuid Afrikaansche Republiek v Buskes & 45 Anderen in which the Ordeclaimed outstanding subscription fees from its members. At least one attorney, William Thomas Hyde Frost, countered that he did not owe the monies because he did not want to be a member of the Orde. Frost argued that he had been admitted to practice before the Orde was established, and that its Reglementtherefore did not apply to him as it did not have retrospective effect. He furthermore stated that he did not want to be a member of the Orde because of its "peculiar apathy in protecting the interests of the profession" and mentioned three reasons that, in his view, illustrated this apathy. All three these reasons concerned the profession's tolerance of the law agents. Lastly he complained that there were no privileges to being a member of the Orde, and that the promised law library had not yet materialised. Despite these arguments, the court found in favour of the Ordeand instructed the respondents to pay the outstanding moneys.

From its inception, the Orde viewed high standards in training as crucial in the existence of the legal profession. Whereas the Ordeat first had no input in the examinations set for attorneys and notaries by the board of examiners, it was decided on 17 May 1894 to request a higher standard of examinations for attorneys and notaries. In addition, the Orde vigilantly guarded the dignity of the profession and took swift action against any of its members whose behaviour was thought to bring disrepute to the profession. For example, in the case of De Ingelyfde Orde van Procureurs en Notarischen in de ZAR vs PMFitzgerald"} the respondent was said to have acted contrary to the dignity and the duties of his profession. The application was nevertheless dismissed.

5 Conclusion
At the start of this article, two opposing views of the lawyers of the old ZARwere presented, namely that of Sir H Rider Haggard and that of Chief Justice Kotze. Perhaps a little background information is appropriate to put these views into context. Despite his lack of legal training, Haggard was appointed as master and registrar of the high court of the ZARin 1877. He resigned a year later in May 1878. In contrast, Sir John Gilbert Kotze was a trained lawyer and had practised as an advocate before being offered a position on the bench of the ZAR. His judicial career in the ZARspanned from 1877 to 1898, seventeen years of which he held the position of Chief Justice. Therefore, when considering these two opposing views, one should keep in mind that Kotze spent considerably more time dealing with the lawyers of the ZARthan Haggard did. Secondly, it should be noted that Haggard has been accused, by none other than Kotze himself, of distorting fiction with fact. When weighing the opposing views against each other, it would seem that, from the outset, the scales are slightly tipped in favour of that of Kotze.
Nevertheless, there seems to be some truth to the perception that the lawyers practising during the early years of the ZAR were unqualified. The first legislation prescribing at least some legal training was only promulgated in 1874. Before that, specific religious affiliation and mere ability were considered sufficient qualifications for a would-be lawyer. By the end of the nineteenth century, however, admission to the legal profession was more strictly regulated and specific requirements for admission were applied.
Worse than the state of the legal profession, was the state of the bench (referring to the landdrosts) of that time. Kotze wrote that the landdrostswere all "laymen, frequently uneducated, and none of them had received any legal training". He named a few individuals who, in his opinion, were "men of common sense and character", but this clearly could not compensate for the lack of legal knowledge on the part of those supposed to administer justice. Even worse was the fact mentioned that a few of these landdrostswere illiterate and as a result, the clerk or registrar of the court who prepared the judgement, often influenced the decision handed down by the court.
With regard to the misconduct of legal professionals, the ZAR undoubtedly had its share of shysters and charlatans. However, this iscertainly true of all legal societies, both past and present. Moreover, such cases were individually addressed in the ZAR and later a regulatory body was established to monitor potential as well as existing practitioners.
Notwithstanding, it should be borne in mind that the ZARwas a young and developing state. The administration of justice was still in its infancy and not a primary concern of the newly-appointed rulers. In general, there were other more immediate concerns that needed the attention of the state. It was probably for these reasons that any person with merely an interest in law was permitted to fulfil the functions of the early legal professionals.