CHAPTER 3:04
LEGAL EDUCATION AND LEGAL PRACTITONERS

ARRANGEMENT OF SECTIONS

   SECTION

PART I
PRELIMINARY

   1.   Short title

   2.   Interpretation

PART II
THE MALAWI COUNCIL OF LEGAL EDUCATION

   3.   Establishment of Council of Legal Education

   4.   Functions of the Council

   5.   Members of the Council

   6.   Tenure of members

   7.   Procedure of Council

   8.   Powers of Council

PART IIA
THE MALAWI INSTITUTE OF LEGAL EDUCATION

   8A.   Establishment of the Institute

   8B.   Functions of the Institute

   8C.   Fees and charges

   8D.   Director of the Institute

   8E.   Duties of the Director

   8F.   Other staff of the Institute

   8G.   Consultants and Instructors of the Institute

   8H.   Funds of the Institute

   8I.   Books of accounts and audit

PART III
ADMISSION TO PRACTISE

   9.   Admission to practise

   9A.   Conditions for recognition of a foreign law qualification

   10.   Malawi Law Examination

   11.   Admission to practise of legally qualified public officers

   11A.   Conditional admission to practise

   12.   Procedure on application for admission to practise

   12A.   Reciprocal recognition to practise the profession of law

PART VI
ARTICLED CLERKS

   13.   Articled clerks who may be admitted to practise [Repealed by Act No. 9 of 2004]

PART V
NOTARIES PUBLIC

   14.   Interpretation

   15.   Appointment of notaries public

   16.   Certificate to practise as notary public

   17.   Jurat to state when oath, etc., is taken

   18.   Suspension or cancellation

   19.   Penalty

   20.   Powers of Chief Justice

PART VI
DISCIPLINE

   21.   Disciplinary powers of the High Court

   22.   When legal practitioner may not practise

   23.   Annual licence

   24.   Unlawfully acting as a legal practitioner etc., an offence

PART VII
THE MALAWI LAW SOCIETY

   25.   Establishment of Malawi Law Society, vesting of assets and dissolution of the Nyasaland Law Society

   26.   Objects of Society

   27.   Membership of the Society

   28.   Every legal practitioner to be member of the Society

   29.   Persons entitled to become members

   30.   Honourary members

   31.   Fees and subscriptions

   32.   Resignation

   33.   Cessation of membership

   34.   Election

   35.   Delegation of powers and functions

   36.   Society’s power to make rules

   37.   Disciplinary Committee

PART VIII
MISCELLANEOUS

   38.   Ex officio legal practitioner

   39.   Legal practitioner is officer of court

   40.   Legal practitioners not to practise in certain courts except in accordance with the Traditional Courts Act etc.

   41.   Order of precedence

   42.   Legal practitioners list

   43.   Clerks to legal practitioners

   44.   Rules

   45.   Savings

      First Schedule

      Second Schedule

      Third Schedule   [Repealed by Act No. 9 of 2004]

      Fouth Schedule

20 of 1965
46 of 1965
4 of 1967
37 of 1967
45 of 1967
25 of 1968
23 of 1970
38 of 1971
13 of 1974
5 of 1974
9 of 1977
8 of 1980
13 of 1980
4 of 1981
34 of 1981
26 of 1990
12 of 1991
14 of 1997
9 of 2004
25 of 2010
G.N. 137/1966
166/1967
263/1969
144/1971
65/1986

An Act to establish a Council of Legal Education and to provide for its functions and responsibilities; to establish criteria for the admission of persons to practise before the courts of Malawi as legal practitioners, and to provide for the professional discipline of legal practitioners; to establish the Malawi Law Society as a body corporate and to make provision for its objects and membership; to make comprehensive provision in relation to notaries public and for matters incidental thereto and connected therewith

[12TH APRIL 1965]

PART I
PRELIMINARY

1.   Short title

   This Act may be cited as the Legal Education and Legal Practitioners Act.

2.   Interpretation

   In this Act, unless the context otherwise requires–

   “Council” means the Council of Legal Education established by section 3;

   “Director” means the Director of the Institute;

   “Institute” means the Malawi Institute of Legal Education under Part IIA;

   “legal practitioner” means a person who has been admitted to practise the profession of the law before the High Court, or before any court subordinate thereto, and whose name has been inscribed upon the Roll;

   “Malawi Law Examination” means the examination in the local laws, practice and procedure of Malawi to be set by the Council from time to time in accordance with section 10;

   “Registrar” means the Registrar of the High Court;

   “Roll” means the Roll of Legal Practitioners maintained by the Registrar on which is inscribed the name of every person admitted to practise as a legal practitioner, and, save for the purposes of subsections (4) and (5) of section 11, includes the Supplementary Roll;

   “Supplementary Roll” means the Roll opened under subsection (4) of section 11.

PART II
THE MALAWI COUNCIL OF LEGAL EDUCATION

3.   Establishment of Council of Legal Education

   There is hereby established a Council of Legal Education which shall be a body corporate to be styled “the Malawi Council of Legal Education”, with perpetual succession and a common seal, with power to hold land and to sue and be sued in its corporate name.

4.   Functions of the Council

   The functions of the Council shall be—

   (a)   to make regulations for the syllabus and curriculum of legal education in, and for attendance at, a Law School or Schools in Malawi;

   (b)   to establish, conduct, regulate, manage, control and supervise courses of legal education in Malawi;

   (c)   to conduct, regulate, manage, control and supervise the holding of examinations in law in Malawi, and, in particular, to set the examination papers for and make arrangements for invigilation at such examinations, and to provide for the marking of the examination papers;

   (d)   to advise and make recommendations to the Minister generally on matters relating to legal education and the requisite qualifications for the admission and enrolment of legal practitioners;

   (e)   to perform such other functions and deal with such matters relating to legal education as the Minister may, in writing, from time to time, direct.

5.   Members of the Council

    The Council shall consist of the Chief Justice of Malawi, who shall be chairman of the Council, and the following other members, that is to say—

   (a)   the Attorney General or a representative appointed by him;

   (b)   a Justice of Appeal or a Judge of the High Court, to be appointed by the Chief Justice;

   (c)   a magistrate of a subordinate court in Malawi, to be appointed by the Chief Justice;

   (d)   two persons in the legal service of the Government, to be appointed by the Minister;

   (e)   the chairman of the Malawi Law Society;

   (f)   a legal practitioner to be nominated by the Malawi Law Society and appointed by the Minister; and

   (g)   two law teachers in Malawi, to be appointed by the Minister.

6.   Tenure of members

   Any person appointed to the Council shall hold office as a member of the Council for such period not exceeding four years as may be specified in his instrument of appointment unless he sooner resigns, or is removed from office, or ceases to have the qualification necessary as a prerequisite to appointment. At the conclusion of any person’s term of office, he shall be eligible for reappointment.

7.   Procedure of Council

   The quorum of the Council shall be five, and the Council may regulate its own procedure; and the validity of any of the proceedings of the Council shall not be affected by any vacancy in the membership of the Council or by any defect in the appointment of a member, or by reason that a person not entitled to do so took part in any proceedings.

8.   Powers of Council

   The Council shall have power to do such things as it considers expedient for the carrying out of its responsibility, but no remuneration or allowance shall be paid to any member of the Council in respect of his office:

Provided that the Minister may from time to time authorize the payment of travelling and other allowances to members of the Council at the same rate as the like allowances are payable to officers in the service of the Government.

PART IIA
THE MALAWI INSTITUTE OF LEGAL EDUCATION

8A.   Establishment of the Institute

   (1) There is hereby established an institute to be known as the Malawi Institute of Legal Education (in this Part otherwise referred to as the “Institute”).

   (2) The Institute shall be subject to the general or special directions of the Council in carrying out its functions.

8B.   Functions of the Institute

   (1) The functions of the Institute shall be to provide practical legal training in courses approved by the Council for purposes of the practice of law in Malawi, and such training shall be at post-graduate level.

   (2) Without prejudice to the generality of subsection (1), the functions of the Institute shall be to—

   (a)   set minimum education entry qualifications, to be approved by the Council, for persons to enroll at the Institute;

   (b)   organize and conduct courses of instruction for the acquisition of legal knowledge and skills by persons seeking to be admitted as legal practitioners;

   (c)   set and conduct, on behalf of the Council, the Malawi Law Examinations;

   (d)   organize and conduct courses in legislative drafting;

   (e)   organize and conduct courses for public officers with a view to promoting their general understanding of the law in Malawi;

   (f)   organize and conduct courses for continuing legal education; and

   (g)   perform such other functions as the Council may, from time to time, direct in writing.

   (3) All courses offered by the Institute shall be approved by the Council.

8C.   Fees and charges

   (1) The Institute may charge and receive such fees and other charges as the Council shall approve for any courses and other training programmes or activities offered by the Institute.

   (2) All persons enrolled with the Institute for any course or attending any programme or activity offered by the Institute shall be liable to pay to the Institute the fees or charges for such course, programme or activity, and for any services or facilities offered by the Institute.

8D.   Director of the Institute

   (1) There shall be the office of Director of the Institute, which shall be a public office.

   (2) The Director shall be appointed by the Council on such terms and conditions of service as the Council shall determine.

   (3) The Director shall be a person who has knowledge of law and has had experience and has shown capacity in the field of law.

8E.   Duties of the Director

   Subject to the general and special directions of the Council, the Director shall be responsible for the management of the Institute and shall exercise executive and administrative control over the other staff of the Institute.

8F.   Other staff of the Institute

   (1) The Council may appoint such other officers of the Institute, subordinate to the Director, as the Council considers to be necessary for the proper discharge of the functions of the Institute and who shall be officers in the public service and appointed on such terms and conditions of service as the Council shall determine.

   (2) The Council may, by directions in writing, delegate to the Director the appointment of officers of the Institute of such junior ranks as the Council shall specify in such directions, and the Director shall report to the Council, at its regular meetings or as the Council may request, every appointment made pursuant to this subsection.

8G.   Consultants and Instructors of the Institute

   (1) The Council may engage persons to serve as consultants to the Institute on such terms and conditions of service as the Council shall determine.

   (2) The Council shall engage persons as consultants to the Institute under subsection (1) on account of their knowledge, experience or competence in relation to the work of the Institute and shall assign to such persons tasks for the discharge of the functions of the Institute.

8H.   Funds of the Institute

   (1) The funds of the Institute shall consist of—

   (a)   such sums as shall be appropriated by Parliament for the purposes of the Institute; and

   (b)   such moneys as may, with the approval of the Council, be raised by the Institute by way of fees, donations, subscriptions, gifts or charges.

   (2) The Institute shall apply its funds for the purposes cf lis functions and may invest any surplus of its funds in the manner approved by the Council.

8I.   Books of accounts and audit

   (1) The Institute shall keep and maintain proper books and records of account of its funds and shall in every respect comply with the Public Finance Management Act.

   (2) The accounts of the Institute shall be examined and audited annually by auditors appointed by the Council, but the Council may direct that the accounts of the Institute be examined and audited at any time.

PART III
ADMISSION TO PRACTISE

9.   Admission to practise

   (1) No person shall practise as a legal practitioner in Malawi, unless he has been admitted to practise in accordance with this Act.

   (2) Where, pursuant to section 11A, a person is admitted to practise subject to the conditions imposed by subsection (2) of that section, such person shall not practise as a legal practitioner, unless he, at all material times, complies with such conditions.

   (3) Subject to section 11 and section 12 (3), no person may apply for admission to practise as a legal practitioner, unless he qualifies for admission in accordance with subsection (4).

   (4) A person may be admitted to practise as a legal practitioner if he is a citizen of Malawi or has resided in Malawi for a continuous period of not less than three months immediately before the date of the filing of his petition for admission under section 12, and—

   (a)   he holds a degree in law awarded by the University of Malawi; or

   (b)   has been admitted to practise as a member of the profession of law in England and Wales, Scotland, Northern Ireland or the Republic of Ireland and has passed the Malawi Law Examination; or

   (c)   subject to subsection (5) and to section 9A, he holds a foreign law qualification as defined in subsection (6).

   (5) a person who holds a foreign law qualification, shall not be eligible to be admitted to practise law in Malawi, unless—

   (a)   he is a citizen of Malawi;

   (b)   the foreign law qualification was obtained from a jurisdiction that applies, as its prevailing basic system of law—

      (i)   the Common Law or a legal system founded wholly or in part on the Common Law; or

      (ii)   Roman-Dutch Law as applied and practised in countries of Southern Africa,

      and in respect of which he studied, in the English language, at least all the subjects specified in the First Schedule;

   (c)   in the jurisdiction from which the foreign law qualification was obtained, he is either—

      (i)   admitted to practise the profession of law and is not under any disciplinary charge for professional misconduct; or

      (ii)   eligible to practise the profession of law, unless, although otherwise eligible, he is denied such eligibility solely on the ground that he is not a citizen or a resident of, or does not owe allegiance to, or solely to, the country or territory of that jurisdiction;

   (d)   he has resided in Malawi for a continuous period of not less than three months immediately before the date of the filing of his petition for admission; and

   (c)   he has passed the Malawi Law Examination.

   (6) For the purposes of this Part, a foreign law qualification is a law qualification obtained from a jurisdiction other than Malawi and which is or includes, an undergraduate degree in law.

   (7) The Minister may, on the advice of the Council, amend the First Schedule by Order published in the Gazette.

9A.   Conditions for recognition of a foreign law qualification

   (1) Subject to subsection (2), no foreign law qualification shall be recognized as a qualification for the admission of the holder to practise as a legal practitioner in Malawi, unless it is so recognized by the Council upon the Council being satisfied that—

   (a)   it was obtained pursuant to a course of undergraduate study, with a university or similar institution, that is designed to last at least three academic years;

   (b)   it is, as assessed by the Council, comparable in scope to the undergraduate degree in law awarded by the University of Malawi or otherwise to be of the appropriate scope for the training of a person to qualify him to practise the profession of law; and

   (c)   it constitutes qualifying training towards eligibility for admission to practise the profession of law in the jurisdiction from which it was obtained.

   (2) In assessing a foreign law qualification for purposes of its recognition, the Council shall consider—

   (a)   the subjects of law studied;

   (b)   the content and duration of the courses of study that led to the award of the law degree;

   (c)   the basic system of law applied in the jurisdiction from which the degree was obtained;

   (d)   whether the applicant was admitted to practise the profession of law in the jurisdiction from which the qualification was obtained, and, if not, whether he fulfilled all the eligibility requirements for admission to practise the profession of law in that jurisdiction save only as otherwise provided in section 9 (5) (c) (ii); and

   (e)   other matters of proficiency as may appear to the Council to be relevant.

10.   Malawi Law Examination

   (1) Every person who seeks to be admitted to practise law in Malawi and who has petitioned to be so admitted, other than a person qualified under section 9 (4) (a), section 11 or section 12 (3), shall be required to take the Malawi Law Examination and his petition for admission shall not be heard unless the Council has certified in writing to the Registrar that he has passed the Malawi Law Examination.

   (2) The Malawi Law Examination shall be set, conducted and managed by the Council, and for that purpose the Council shall—

   (a)   develop a syllabus in respect of which candidates are to be examined and shall make such syllabus generally available, and the Council may review such syllabus from time to time; and

   (b)   make available to every candidate, at least thirty days before the date of the examination, a copy of the syllabus for the examination.

   (3) The Council may enlist the services of any person, body or institution with relevant expertise to assist it with the development of the syllabus referred to in subsection (2) and the setting, conduct or management of the Malawi Law Examination.

   (4) Every candidate of the Malawi Law Examination shall before taking the examination pay to the Council such fee as may be prescribed, and the receipt of the Council issued to the candidate in respect of payment of examination fee shall be attested in the petition for the admission of the candidate.

   (5) Any examination fee paid by a candidate shall not be refundable whether the candidate has passed or failed the examination.

   (6) After a candidate has written the Malawi Law Examination, the Council shall arrange for the marking of the candidate’s answers to determine whether the candidate has passed or failed the examination.

   (7) The marking of a candidate’s answers in the examination shall—

   (a)   be ordinarily done by the person or persons who set the examination or, in the absence of the person or persons who set the examination, be done by any other competent person appointed by the Council; and

   (b)   follow a marking scheme developed by the person or persons who set the examination and approved by the Council.

   (8) A candidate who has failed the Malawi Law Examination and who disputes his failure may appeal to the Council to have his answers re-marked and the Council shall thereupon arrange for the answers to be re-marked within a reasonable time either by the person or persons who first marked the answers or by any other competent person or persons appointed by the Council for that purpose.

   (9) A candidate who has failed the Malawi Law Examination may repeat taking the examination for not more than four times subsequent to the first attempt.

11.   Admission to practise of legally qualified public officers

    (1) Any person who—

   (a)   holds a degree in law awarded by the University of Malawi or has been admitted to practise as a member of the profession of law in England and Wales, Scotland, Northern Ireland and the Republic of Ireland; and

   (b)   has been in active employment, in a judicial or legal capacity, in the Judicial Department, Attorney General’s Chambers, Department of Lands, the office of the Ombudsman, the Human Rights Commission, the Law Commission or other Department of Government performing legal duties on behalf of the Government for a period of or for periods amounting in all to one year,

may, on making application to the Chief Justice in that behalf, be admitted by the Chief Justice, after consultation with the Council, to practise as a legal practitioner.

   (2) Every application under subsection (1) shall be by petition addressed to the Chief Justice and verified by affidavit of the applicant and shall be made within ninety days of the date of completing the qualifying period specified in that subsection:

   Provided that the Chief Justice may hear an application made out of time upon good cause being shown by affidavit of the applicant as to why the application was not made within the period allowed in this subsection.

   (3) Every person who, before the commencement of this subsection, was admitted, or was entitled to apply for admission, under subsection (1) as legal practitioner shall, without further procedure and notwithstanding the actual date of admission in the case of an admitted person, be deemed to have been admitted to practise in Malawi as a legal practitioner and to have signed the Roll of the date of his first appointment in a judicial or legal capacity by which he became eligible for admission under subsection (1).

   (4) The Registrar shall open a Supplementary Roll on which he shall inscribe, in chronological order of the dates of their first appointments in the public service in judicial or legal capacity the names of all persons who are deemed under subsection (3) to have been admitted to practise as legal practitioners and any such person shall be entitled at any time to affix his signature in the Supplementary Roll against his name.

   (5) The inscription of a person’s name on the Supplementary Roll pursuant to subsection (4) shall supersede, in all respects, the inscription of his name on the Roll.

   (6) Save as provided in subsections (4) and (5) the Roll and the Supplementary Roll shall be read as one for all purposes of this Act.

   (7) Nothing in subsection (3) shall be construed to have reinstated onto the Roll the name of a person struck off the Roll under section 21.

11A.   Conditional admission to practise

    (1) Where an application for admission to practise as a legal practitioner is made by a person, not being a person who possesses the qualifications set out in section 11 or section 12 (3), the Chief Justice may, subject to the other provisions of this Act, admit such person to practise as a legal practitioner and, unless the Chief Justice is of the opinion that such person has, for a period of not less than two years prior to the date of such application, practised as a qualified lawyer in—

   (a)   a country, state or territory which applies, as its prevailing basic system of law, the Common Law or a legal system founded wholly or in part on the Common Law; or

   (b)   a country of Southern Africa which applies, as its prevailing basic system of law, the Roman-Dutch Law,

such admission shall be a conditional admission for the purposes of this Act and subsection (2) shall apply.

   (2) Subject to the other provisions of this Act, where any person has been admitted to practise as a legal practitioner and his admission is conditional, he may not practise as a legal practitioner—

   (a)   except as the employee—

      (i)   of a prescribed legal practitioner; or

      (ii)   of a firm of legal practitioners of which at least one partner is a prescribed practitioner; or

      (iii)   in the legal department of a local authority, such department having a prescribed legal practitioner at its head; and

   (b)   unless while so practising he is under the general guidance, supervision and control of—

      (i)   the prescribed legal practitioner referred to in paragraph (a) (i); or

      (ii)   the partner referred to in paragraph (a) (ii) or a partner of his in the same firm who is a prescribed legal practitioner; or

      (iii)   the head of the legal department referred to in paragraph (a) (iii),

as the case may be.

   For the purposes of this subsection, a prescribed legal practitioner is a legal practitioner of at least three years’ standing whose own admission is not conditional:

   Provided however that no legal practitioner shall be a prescribed legal practitioner while he is exercising, or attempting to exercise, the guidance, supervision and control referred to in paragraph (ii) over more than two legal practitioners whose admission is conditional.

   (3) Any legal practitioner whose admission to practise is conditional under this section may, by motion within the relevant admission proceedings, apply to the Chief Justice for the removal of the conditions attaching to his admission by virtue of subsection (2), and upon satisfactory proof being adduced, whether by way of affidavit or otherwise as directed by the Chief Justice, that the applicant has, since the date of his admission, been actively employed for a continuous period of not less than twelve months in compliance with subsection (2), the Chief Justice shall order the removal of the said conditions and thereupon the admission to which they relate shall cease to be conditional.

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